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Commercial Litigation Insurance Law Landlord Tenant Law Litigation

Drafting a Fair Force Majeure Provision In the Wake of COVID-19

Only a handful cases have addressed force majeure clauses in commercial real estate agreements in the wake of the pandemic, which has produced conflicting views as to whether performance was excused.

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Now that we have endured more than one year of living in a pandemic, the question arises: how has it affected the manner in which commercial real estate transactions should be negotiated and documented? The negative impact on the already distressed retail and office markets is self-evident. There is little need to maintain a storefront if customers either cannot or will not shop there. The need for facetime in an office environment has proven to be over-stated. If a tenant’s business is no longer viable for reasons beyond its control, how should that circumstance be addressed in a lease?

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