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The COVID-19 pandemic and a series of government shutdown orders have negatively impacted many contracts and commercial leases, either preventing or slowing performance and upending the expectations of contracting parties. As resulting contract and lease actions enter the court systems, the parties and the court will have to unravel complex facts, causation and allocation of risk of loss issues impacting performance often leading to losses for both parties. This article examines how these actions might be approached and resolved by settlement by applying a series of contract performance doctrines that inevitably arise during these types of situations: force majeure, impossibility, impracticability, commercial frustration of purpose, and material adverse change or effect clauses.
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By Bruce H. Lederman
At a time when the COVID-19 crisis is causing an unprecedented number of lease defaults, a recent NY Court of Appeals decision provides both guidance and warnings to attorneys asked to negotiate and litigate leasehold surrender agreements.
By Adam Leitman Bailey and John M. Desiderio
This article addresses and updates the law on the self-help remedy that enables commercial landlords to regain possession of leased premises from tenants in material breach of one or more lease covenants.
By Erika B. Morphy
If commercial real estate is going to have a successful 2021, it will require the ability to seek out unexpected advantages.
By Warren A. Estis and Alexander Lycoyannis
As the COVID-19 pandemic and its accompanying economic fallout continue to unfold, commercial tenants have increasingly come to rely on the common law doctrines of impossibility of performance and frustration of purpose as defenses to the nonpayment of rent.