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After a short period of complete uncertainty in March and April 2020, a handful of landlords and tenants smartly negotiated modifications of their existing leases to establish new lease terms for the remainder of the calendar year and in some cases well beyond. Such lease modifications in the past six months have included the following:
It is no secret that many retailers have been unable to pay their full rental obligations (and some in no position to pay any rent). While some landlords and tenants have been able to reach agreement on one or more of the modifications described above, in many cases no resolution is reached. As a result, the court systems across the United States are filling up with rent payment disputes between landlords and tenants. The decisions in these cases have shaped how landlords and tenants negotiate rent modification agreements.
Most courts have so far found in favor of landlords which has led to some landlords being less incentivized to strike a deal with their struggling tenants. However, a recent February decision in the Massachusetts Superior Court found a judge bucking this trend by ruling in favor of a tenant operating as a café, sending a jolt through the commercial landlord-tenant community. In UMNV 205-207 Newbury, LLC v. Caffé Nero Americas Inc., the trial court excused the tenant café’s obligation to pay rent during the period of Governor Charlie Baker’s shutdown order, with the judge basing his decision on the application of an old legal doctrine known as “frustration of purpose”. Under this doctrine, when a party’s primary purpose under a contract is materially frustrated (through no fault of their own) by the occurrence of an unforeseeable event, then the party’s obligations under the contract are discharged. While this case is only a lower court decision that could be overturned on appeal, it has served as a wake-up call for the Massachusetts real estate community. Other cases could be decided in a similar fashion as more landlord-tenant disputes work their way through the court system. Litigation will surely continue well after the pandemic is over and can change how parties approach lease modification discussions.
The commercial real estate industry in Massachusetts has experienced its fair share of twists and turns courtesy of the COVID-19 pandemic. Even with an end seemingly in sight, there is simply no way to predict when normalcy will return (and it will not be an overnight process). Open dialogue and cooperation is still the best path to negotiating a mutually beneficial solution to get through the pandemic and eventually return to business as usual. It is the one way for landlords and tenants to achieve a little bit of certainty amidst the unpredictability of the pandemic and the legal landscape still coming into focus.
Our guest blogs are written and produced by organizations within our membership. They are not intended to reflect the views nor opinions of the Greater Boston Chamber of Commerce.
Eric is a partner in the Boston office at Seyfarth Shaw. He also serves as co-chair of the national Leasing practice and focuses his work on commercial, retail, and office leasing. Real estate clients faced with aggressive growth goals look to Eric when they need to increase their number of leased or owned sites, retail locations, and office locations. As a certified Six Sigma Green Belt, Eric uses project management, process improvement, and technology in all aspects of his legal practice. He works collaboratively with clients to develop a programmatic and innovative approach to their real estate portfolios. His collaborative client relationships have been recognized with accolades and awards from the Association of Corporate Counsel (Value Co-Champion Award), The American Lawyer (Best Client/Law Firm Team Award) and The Financial Times (Innovation in Collaboration Honor).