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In the wake of the global pandemic which caused widespread unforeseen business interruption, “best efforts” clauses in commercial leases have come under scrutiny. While these clauses are often heavily negotiated, they inherently require a degree of interpretation because they speak to the uncertainty of a party’s future performance, which is constrained by variables outside of both parties’ control. For example, a restaurant lease may obligate the tenant to use “commercially reasonable efforts” to increase gross sales if they fall below a threshold, where the landlord is receiving a percentage of those revenues; or the restaurant tenant may be required to use “best efforts” to obtain a liquor license by a date certain as a condition for receiving the benefit of rent forgiveness prior to opening.
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By Howard B. Epstein and Theodore A. Keyes
Many businesses have sought to recover their pandemic losses under commercial property insurance policies, only to be denied coverage. A significant number of policyholders have filed lawsuits challenging these disclaimers, primarily in state courts. But to the dismay of the insureds, a growing majority of high state courts have sided with the insurers in these disputes.
Navigating the Intersections of Commercial Real Estate and Eminent Domain Actions
By Ellen Smith and Elizabeth Story
For real estate attorneys, knowing how to navigate around eminent domain actions in the midst of various transactions and operations is critical to best position clients for the future condemnation conundrum.
A Prepackaged Bankruptcy Could Be the Answer to a Mortgage Default
By Timothy Little, Scott Vetri, Julie Lee and Peter Siddiqui
This article discusses the value of prepackaged bankruptcy as an alternative route for addressing commercial mortgage defaults in high tax jurisdictions.
NJ Supreme Court: Commercial Property Owners Have a Duty to Maintain Abutting Sidewalks
By Colleen Murphy
In a 4-3 decision on June 13, the New Jersey Supreme Court reversed an Appellate Division opinion in a slip-and-fall case, concluding that all commercial landowners have a duty to maintain public sidewalks and are liable to pedestrians who are injured as a result of their negligent failure to do so.