Why disputes over pandemic commercial rents are seeing little court action

纳帕市中心历史悠久的Borreo大楼的所有者正在与租户的总部位于南加州的石材酿造公司进行法律斗争,以纪念冠状病毒大流行期间的租金支付。

The ownership, West Pueblo Partners, sought to evict, claiming that the chain of brewpubs owes over $211,000 in unpaid rent, including $40,000 not paid since November, according to the Napa Valley Register. Stone Brewing sued in Napa County Superior Court, claiming that capacity restrictions cut its revenue.

Stone Brewing首席执行官玛丽亚·斯蒂普(Maria Stipp)表示,该公司提出了多种解决方案,该解决方案认识到大流行现实要求租户与房东“公平地享受负担”。

“We’re hopeful that we can work this out swiftly, just as many of our industry peers are doing, so we can all get back to the beer,” she said in a statement.

该案是房地产律师说的哪个地区是在大流行期间提起的极少数法律诉讼,是因为政府对商业租户免受法院对未付租金的申请的保护已在最近几个月结束,并且随着法律持续付款的法律论点,也正在开始政府对企业的限制减少了更具挑战性。

“Most of these things are either going to mediation or settling outright,” said Daniel Dersham, who specializes in real estate and corporate cases at San Rafael-based Lerman Law Partners. The Business Journal asked him to search local court filings and check with other legal sources for similar cases. “That's been the preferred route.”

Dersham said he has worked with roughly three dozen pandemic-related rent-payment cases in the past year for commercial tenants or landlords, ranging from brief consultations to settlements and to near litigation.

While a few of those cases are on the verge of court action, as many as 15 have settled.

这些定居点是租赁终止的混合在一起,以换取某种形式的付款或重新谈判租赁,有时包括将递延或无缴纳的租金分配到未来的租金支付上,并可能延长租赁期限。

Commercial property owners have employed that “blend and extend” tactic in previous economic downturns to keep tenants that are having trouble making the rent, according to local real estate agents who declined to be identified because of sensitive ongoing negotiations.

德尔瑟姆说,六个月前,朝着更多的租赁更新对话进行了转变,当时许多租户只是想摆脱租赁。

他说:“在过去的两个月中,周转已经发生,因为一月份的冠状病毒案件仍在爆炸。”

但是从那以后发生了很多变化。

自疫苗从12月开始在黄金州推出以来,截至上周,据估计,估计有126万居民在索诺玛,索诺诺,索拉诺,马林,纳帕,门多西诺和湖县的估计估计166万居民中,至少收到了一剂剂量-19疫苗和45.4%的疫苗已完全疫苗接种,根据国家人物.

Infection and hospitalization rates for North Bay counties have fallen to the point that all but Solano have moved to the second-least-restrictive tier — orange — of California’s four-color reopening plan, but Solano remained in the second-most-restrictive tier, red. Mendocino County on Tuesday达到最不限制的水平,黄色,马林和索诺玛县准备在几天内采取这种行动。

This matters for the lease disputes, because if a restaurant is limited to no indoor capacity, 25% or 50% in the purple, red and orange tiers, respectively, then there could be legal room to maneuver, according to Dersham.

“Is that really frustrating the purpose of the lease if you're basically forced just to reduce your business but not shut it down completely?” he asked "There were a lot of counties where they didn't really shut down everything for that long.”

随着截至8月萨克拉曼多的县或官员开始允许某些县的某些行业根据准则重新开放,例如如何在户外操作或内部外面的混合体,那么法律论点可能与完全关闭的情况不同德森说。

Landlords have been looking to commercial lease “force majeure” (“superior force” or “act of God”) clauses for situations in which it would be contractually impossible to perform what was agreed to, particularly for counties and industries under the strictest limitations during the pandemic. California Civil Code section 1511 also offers contractual protections for situations where it’s impossible for the parties to perform.

德瑟姆说:“戴上帽子的一个好策略是租赁中的语言说,房东不保证使用适合使用。”“无论房客使用该空间的能力如何,租户有权使用该空间。”

德森说,但是租户一直在转向长期以来的“商业挫败感”的法律理论,希望追溯到第二次世界大战时代。与不可抗力和CCC 1511的部队不同,这种挫败感取决于租约中所考虑的主要目的的商业活动的破坏,例如保龄球馆,独立于政党执行其他方面的能力,例如租金。

The ability-to-pay-rent arguments get complicated when tenants resort more to alternative revenue sources such as take-out, delivery, off-site or online sales that may not involve the tenant’s ability to open the leased property to the public, he said. And whether the tenant and the landlord have received pandemic economic relief such as grants or loans also adds to the settlement conundrum.

根据迪克森·佩特曼(Dickenson Peatman&Fogarty)纳帕办公室的房地产交易,至少有一位当地的酒店业主在租赁部队不可抗力条款上积极主动解决COVID-19的容量限制和租金宽恕。

“房东意识到收入是基于房客可以带来的人数,”科里根说。“如果那是有限的,那么钱就不是为了支付租金。”

他指出,这与办公室租户不同,这可以远程操作。

There also have been big changes in recent months to legal protections for tenants that governments imposed early in the pandemic.

The first weeks after California and local governments issued restrictions on economic activity in mid-March 2020 to slow the viral spread saw a flurry of legal inquiries as businesses, their landlords and the property owners’ lenders sought to figure out how to proceed when rent, mortgage and property-tax payments came due that first of April, according to Dersham.

But then the California Judicial Council and officials at county and city levels stepped in with moratoriums on residential and commercial evictions as well as on court filings on unlawful detainers for nonpayment of rent. The council’s order ran from April through Sept. 1, 2020. That was replaced by residential eviction and rent protections in Assembly Bill 3088, which includes the COVID-19 Tenant Relief Act of 2020.

一些北湾司法管辖区允许商业租户保护终止,而另一些司法管辖区,例如Vallejo,索诺玛市,维尔市Solano County已将他们固定在全州紧急订单上。例如,Vallejo’s order, adopted March 18, 2020, is effective through the entire period of the locally declared emergency and does require residential and commercial leaseholders to pay back rent, with the repayment period starting March 1 of this year and running through the end of March 2022.

旧金山是商业暂停逐渐淘汰的一个值得注意的湾区例外,该地区于12月1日enacted a new ordinance, effective Jan. 11, that gives certain businesses the right to terminate leases after a 30-day notice and paying due rent, or those tenants can defer rent for up to two years, depending on the number of employees.

Jeff Quackenbush涵盖了葡萄酒,建筑和房地产。在《商业杂志》之前,他在旧金山为贝城新闻服务撰写了撰写。他拥有瓦拉·瓦拉大学(Walla Walla University)的学位。到达他jquackenbush@busjrnl.com或707-521-4256。

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