[WSBARP] Retail Tenants and Commercial Frustration
Kaitlyn Jackson
kaitlyn at dimensionlaw.com
Thu Apr 23 15:09:21 PDT 2020
What about student housing where the school has closed?
Kaitlyn
On Thu, Apr 23, 2020 at 3:06 PM Andrew Hay <andrewhay at washingtonlaw.net>
wrote:
> That will probably be the case quite frequently -- that where there is a
> force majeure clause, it protects the landlord. Depends on the bargaining
> power of tenant.
>
>
>
> Query whether the one-way force majeure clause means the tenant cannot
> prosecute a commercial impracticability claim?
>
>
>
>
>
> *Andrew Hay*
>
> Hay & Swann PLLC
>
> 201 S. 34th St.
>
> Tacoma, WA 98418
>
> *www.washingtonlaw.net <http://www.washingtonlaw.net/>*
>
> *andrewhay at washingtonlaw.net <andrewhay at washingtonlaw.net>*
>
> 253.272.2400 (w)
>
> 253.377.3085 (c)
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> *From:* wsbarp-bounces at lists.wsbarppt.com <
> wsbarp-bounces at lists.wsbarppt.com> *On Behalf Of *Douglas Scott
> *Sent:* Thursday, April 23, 2020 2:18 PM
> *To:* WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
> *Subject:* Re: [WSBARP] Retail Tenants and Commercial Frustration
>
>
>
> My restaurant client has a force majeure clause in their lease with the
> landlord. However, it is not reciprocal and only benefits the landlord.
>
>
> *DOUGLAS W. SCOTT*
>
> Rainier Legal Advocates|LLC
>
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>
> 465 Rainier Blvd. N., Suite C
>
> Issaquah, Washington 98027
>
> 425.392.8550 (tel)
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> 425.392.2829 (fax)
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> www.rainieradvocates.com
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> On Thu, Apr 23, 2020 at 1:03 PM <nestor at pplsweb.com> wrote:
>
> 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*
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> *BRANDT LAW GROUP*
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> *From:* wsbarp-bounces at lists.wsbarppt.com <
> 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>
> *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
>
> *www.washingtonlaw.net* <http://www.washingtonlaw.net/>
>
> *andrewhay at washingtonlaw.net* <andrewhay at washingtonlaw.net>
>
> 253.272.2400 (w)
>
> 253.377.3085 (c)
>
> THIS IS A CONFIDENTIAL COMMUNICATION AND IS INTENDED FOR THE DESIGNATED
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--
Thank you,
Kaitlyn R. Jackson | Attorney| DIMENSION LAW GROUP PLLC
130 Andover Park East, Suite 300 | Tukwila, WA 98188
t: *206.973.3500 *| f: *206.577.5090*| e: *kaitlyn at dimensionlaw.com*|
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