Real Property Law

NY Court of Appeals Decision Highlights Growing Trend of Higher Courts Ruling Against COVID-Related Lease Defenses

By Mark Ellinghouse

Mark Ellinghouse

Since the start of the COVID-19 health crisis, we have been approached by both landlord and tenant clients asking how COVID affects their leasehold obligations. While we have generally encouraged our clients to approach these matters in an honest and amicable manner with a focus on resolution, disputes have arisen between owners and occupiers. Legal resolution does not come quickly, as the legal process tends to delay final adjudication for several years. Some decisions have been rendered in interim proceedings (such as bankruptcies), but on the whole, there simply has not been enough time for COVID-related disputes to proceed through both the trial and appellate levels and provide guidance on how these lawsuits will be resolved.

A recent decision by a New York appeals court is perhaps one of the first to provide some clarity regarding how an appellate court will interpret how common COVID-related defenses will apply in a lease enforcement action. In The Gap, Inc., v. 170 Broadway Retail Owner, LLC, the tenant (The Gap) sued its landlord under theories of casualty, frustration of purpose, and impossibility, seeking to avoid its obligation to pay rent and terminate its lease in response to the COVID-19 pandemic. When the landlord filed a motion to dismiss the tenant’s complaint, the trial court denied the motion, finding that the tenant had stated a valid claim and providing implied approval that these arguments could be used by tenants to avoid their leasehold obligations.

On appeal, the appellate court unanimously overturned the trial court’s decision.  The judges first concluded that the casualty provision of the lease was not triggered by COVID-19 because no physical loss or damage had occurred. The court then addressed the tenant’s equitable arguments, finding that frustration of purpose did not apply because the tenant was not completely deprived of the benefits of its premises, and it was not impossible for tenant to perform its obligations under the lease such that the lease could be rescinded. The tenant was ordered to pay all back rent and continue paying rent in accordance with the lease going forward.

Although not binding in California, this decision is emblematic of the trend among courts reviewing the impact of COVID-19 on commercial leases. On the whole, most courts have concluded similarly to the New York appeals court, deciding that tenants must bear the risk of a pandemic absent some unique circumstances or lease terms that would vary this conclusion. This is true even in the business interruption insurance context, leaving tenants without many legal options for relief. Hopefully, the various governmental stimulus packages have supported these tenants’ business operations sufficiently to weather the worst of the pandemic and take advantage of what appears to be a booming economic recovery. For landlords, these decisions are welcome support for opposing any tenants who attempt to opportunistically rely on COVID to justify temporary or permanent relief from their leases.

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