One of the First Reported Court Rulings Addressing Whether Business Can Be Legally Excused From Paying Rent While Subject to Government Covid-19 Shutdown
As the Boston Globe reported this week, Suffolk Superior Court Business Litigation Session Judge Kenneth Salinger ruled that a Caffe Nero coffee shop on Newbury Street was legally excused from paying rent for the nearly three months last spring when indoor dining was halted under state orders to combat the spread of COVID-19. The ruling could give leverage to struggling restaurants dealing with lost business and unpaid rent bills. The 12-page court ruling is embedded below.
UMNV 205-207 Newbury LLC (UrbanMeritage) v. Caffe Nero Americas, Inc., Suffolk Superior Court CA 2084CV01493-BLS2
The dispute between Caffe Nero and UrbanMeritage, a prominent Back Bay landlord that owns a number of storefronts on Newbury Street, began not long after Governor Charlie Baker ordered indoor dining closed on March 24, 2020 — a massive blow for a European-style cafe whose business model hinges on people lingering over lattes and croissants. Caffe Nero promptly asked for a break on its roughly $13,000-a-month rent, but UrbanMeritage said no, and issued a default notice for nonpayment. By June, UrbanMeritage had launched eviction proceedings, ultimately filing a lawsuit seeking more than $300,000 in back rent, damages, and legal fees.
Frustration of Purpose Doctrine
Applying the doctrine of “frustration of purpose,” Judge Salinger ruled that rent payment is excused when performance becomes impossible through no fault of either party, such as a natural disaster or pandemic. Since Caffe Nero’s lease only allowed for restaurant use (and no other uses), and Gov. Baker’s Covid-19 shutdown order of indoor dining during the early days of the pandemic prevented that use, Judge Salinger found that the doctrine of frustration of purpose applied in this case.
Force Majeure Clause
Judge Salinger also side-stepped the parties’ “force majeure” lease clause, which could have been read to negate the frustration of purpose defense used by Caffe Nero. A force majeure provision is a common clause commercial leases which essentially frees both parties from liability or obligation when an extraordinary event or circumstance beyond the control of the parties, such as a war, strike, riot, crime, epidemic, sudden legal changes or an event described by the legal term Act of God, prevents one or both parties from fulfilling their obligations under the contract. The force majeure provision in the Caffe Nero lease, however, specifically stated that the payment of rent due to financial inability cannot be a reason to invoke the clause. In perhaps questionable reasoning, Judge Salinger ruled that “the force majeure provision addresses the risk that performance may become impossible but does not address the distinct risk that the performance could still be possible even while [the] main purpose of the Lease is frustrated by events not in the parties’ control.”
Take-Aways
I have several Covid-19 related lawsuits pending where businesses and restaurants could not pay their rent during the pandemic, and I’ve pled the same defense as Caffe Nero did in this case. (I don’t yet have a formal ruling in my cases). I think it’s inevitable that we will see more of the same rulings by judges who are sympathetic to businesses who were shut down completely due to Gov. Baker’s orders. Certainly, this ruling will cause landlords to reevaluate whether they will be able to collect all unpaid rent from a Covid-impacted business. Of course, the usual considerations will also apply — financial ability to pay, assets, timing of payments, etc. We will see….as always, if you are dealing with a commercial lease dispute or know someone who is, feel free to contact me at [email protected].
SJC Sends Case Down to Suffolk Superior Court; Rental Property Owners Gear Up For Federal Court Fight
As many of you know, I am lead counsel in the legal challenge to overturn the COVID-19 Eviction Moratorium Act, which was filed with the Supreme Judicial Court at the end of May. The case is Matorin v. Chief Justice of the Housing Court, SJC-2020-0442. The Attorney General’s Office agreed with us that the SJC should take up the case. However, yesterday, Justice David Lowy ordered the case sent down to the Suffolk Superior Court for consideration of all the issues raised by the petition. Suffice to say, we are very disappointed that the SJC has declined to take up the constitutionality of the Eviction Moratorium, which is causing widespread financial and personal harm to rental housing providers across the state. Perhaps the Act is simply too much of a political “hot potato” for the SJC to weigh in during this global pandemic. Justice Lowy provided no reasoning or rationale for taking such action. See Order below.
Nevertheless, the case will still proceed in Suffolk Superior Court and we have lost nothing except for some time. The merits of our claims have not yet been addressed and will be considered by the Superior Court in due course. We will do everything we can to fast-track the case. The case has been specially assigned to the very well respected Justice Paul D. Wilson, appointed by Gov. Patrick and formerly a partner at Mintz, Levin.
Despite this, we are not going down without a fight. We have decided to file our federal constitutional claims in Federal Court in Boston, seeking to strike down the Moratorium. We are hopeful that the federal court will give us a fair shot. I’ll keep you posted on that front as well.
It seems like we are fighting everyone on these important issues for the rental property community. Meanwhile, state Cambridge Rep. Mike Connolly and Congresswoman Pressley just held a virtual town hall on Facebook, and said they are filing a bill to extend the Moratorium for 12 MONTHS. They are also filing a bill to FREEZE rents, as well as RENT CONTROL. Obviously, this would be devastating to rental housing providers. We could use some positive PR and stories about small landlords being really hurt by this Moratorium.
This fight will go on — to the end. I’ll keep you posted. Also, with more litigation, comes more legal fees and expenses. We are still seeking donations to the cause. To contribute please click our secure Paypal link: https://paypal.me/pools/c/8orbLzpxbY.
Self-Proclaimed “Socialist” State Rep. Sponsors Rent Control and Tenant Protection Bills; Measures Pass Important Committee
After passing the nation’s strongest COVID-19 Eviction Moratorium, a group of far left legislators are now using the Coronavirus public health crisis to push many more controversial measures, including Rent Control and Just Cause Evictions. The Legislature’s Joint Committee on Housing voted last week to recommend passage of two measures that would let cities and towns impose rent control and other tenant protections, effectively undoing a 1994 ballot measure that banned rent control in Massachusetts.
One bill (H.B. 3924), sponsored by self-proclaimed socialist Rep. Mike Connolly of Cambridge (pictured left), would establish a new “Tenant Protection Act,” enabling towns and cities to restore local rent control boards. However, this measure goes much further, seeking to adopt a radical wish list of tenant protection proposals previously rejected over the last several years. These include new “anti-displacement zones,” stricter condominium conversion rules with mandatory tenant relocation payments, a broad just-cause eviction statute (which the Legislature previously rejected a year ago), mandatory rent deposit installment plans, and other tenant-favorable provisions.
The other bill (H.B. 1319) would cap rent increases at the annual change in the Consumer Price Index (CPI) or 5%, whichever is less. The only exception to this would be for owner-occupied units of three-family homes or less with a Sec. 8 or other federal/state subsidized tenant.
As I’ve written here before, Rent Control is an experiment tried and failed many times before, and universally rejected by economists. The great thing about the 1994 vote banning rent control is we now have empirical data and a reliable study from prominent economists which has compared the Cambridge housing market during rent control vs. after rent control. We also have data and a similar study out of San Francisco. Both studies (and others from the past) have found that rent control did not work at all, and actually had the exact opposite effect — contributing to gentrification, displacement of tenants and income inequality.
The bills’ fate is far from clear. Lawmakers have a host of issues on the agenda before their formal session ends in July, and have been voting remotely, which has slowed the legislative process. Baker signaled his opposition to the bill when it was first filed last year, saying it would hinder construction of new housing, though he has said little about it lately.
Rental property owners should email their representatives to reject House Bill 3924 and House Bill 1319.
I’m posting the YouTube video of our fantastic Zoom call on COVID-19 with Dr. George Seage, Director of Infectious Disease Program at Harvard School of Public Health. Dr. Seage is the Harvard faculty advisor to the Massachusetts COVID-19 Tracing Program.
Some quick take-aways:
✅ Worst virus outbreak since 1918 Influenza Pandemic (could be worse actually) ✅ Massachusetts is actually not in good shape. We may run out of ICU units and ventilators. ✅ We won’t be back to “normal” until July-August. ✅ It will take longer to get back to normal because government leadership won’t take stricter mitigation – he recommends 2 week national shelter in place ✅ Masks and gloves in public but strict social distancing (stay at home) & frequent hand washing remains best ✅ Even when we get back to work and school, there will be flare-ups over 12 months until we get a vaccine. Some cities/areas could go back to lockdown status ✅ Real estate agents: DO NOT HOLD OPEN HOUSES OR SHOWINGS. STAY AT HOME. If you do so, wear full protective gear and make visitors wear also. ✅ Attorneys: It’s unreal that you don’t have remote notarization yet. What are these legislators thinking!? If you need to interface with clients, wear full protective gear (mask, gloves). Stay at least 6 ft. away. Wash and disinfect everything after.
Update: 4/22/20 — The Senate has passed a new revised version of the Bill, now it moves on to the House where it is expected to pass.
The real estate legal community, including yours truly, have been working and lobbying tirelessly to address the various impacts of the Coronavirus (COVID-19) Crisis on real estate transactions and closings. One of the first solutions we proposed is legislation allowing for remote or virtual notarizations of deeds, mortgages and other closing documents so that buyers and sellers can sign documents in the safety of their own homes on their computers. Due to the COVID-19 crisis, many folks are subject to the Governor’s Stay At Home Order or don’t feel safe traveling outside to an attorneys’ office for a real estate closing. Meanwhile, while the economy heads towards a recession, real estate is one of the few assets with available equity for consumers.
Under our proposed legislation, An Act Relative To Remote Notarization During COVID-19 State of Emergency (S.D. 2882), a licensed Massachusetts attorney may notarize legal documents using video-conferencing technology. There is a two-step process laid out in the legislation to complete the notarization process where the signer shows the attorney his/her state issued identification, sends the original signed documents back to the attorney, and then verifies the authenticity of the signed documents. Once that process is complete, the attorney can stamp the documents as notarized and must also complete and sign an affidavit attesting that all requirements have been met. Those notarized documents may then be recorded with the Registry of Deeds as valid, legal and binding recordable instruments. Additionally, the two video-conferences must be recorded and kept on file for 10 years. The bill would only be in effect during the COVID-19 State of Emergency.
The bill has widespread industry support from the Real Estate Bar Association (including the Probate Section), the Massachusetts Bar Association, the Massachusetts Association of Realtors and Greater Boston Real Estate Board. Twenty three (23) states have now passed remote notarization bills, including just recently due to the COVID19 crisis, including New York State, Vermont, Connecticut, Florida, Virginia, Texas, and Nevada. Moreover, a nationwide bill has been proposed by the American Land Title Association.
There are a number of technology companies that offer end-to-end remote notarization systems and are approved by national title insurance companies and lenders. They include:
To our real estate partners and colleagues, WE NEED YOUR HELP NOW! We need you to email or call your State Rep. and Senator and tell them you support our proposed legislation, An Act Relative To Remote Notarization During COVID-19 State of Emergency (S.D. 2882). To search for your state legislator, please click here.
Thank you! I will keep you posted as to developments and hopefully passage of the bill. Also many thanks to Attorneys Kosta and Nik Ligris on spearheading the bill!
SignificantImpacts Hitting: Registry and Court Closures, Closing and Financing Delays, Social Distancing,School Closings, Quarantine Potential
As I was writing this post tonight, Gov. Baker ordered the shutdown of all schools through April 6, closed down restaurants and bars, and is banning gatherings over 25 people. Also announced tonight is the shut down of all Trial Court facilities on March 16 and March 17, which includes the Cambridge and Suffolk (Boston) Registries of Deeds. We are now hitting the tipping point, and going forward there will be substantialimpacts on the real estate and legal industry.
I first wrote about the Coronavirus (COVID-19) global pandemic five days ago. Seems like an eternity ago. As of that writing (data as of March 9), there were 729 reported cases in the US, with 27 deaths. As of tonight March 15, cases have over quintupled with Johns Hopkins reporting 3,722 confirmed cases and 61 deaths. With the well publicized testing delays, the real number of cases are likely far higher.
Registry of Deeds Impacts
As mentioned above, Gov. Baker just ordered the closure of all Trial Court facilities for Monday March 16 and Tuesday March 17. Both Cambridge and Suffolk (Boston) Registries are housed in Trial Court facilities so they will be closed for those two days. I spoke to Maria Curtatone, Registrar of Deeds for Cambridge Middlesex South, and she indicated that this may well be the precursor to widespread shutdown of all registries of deeds and courts throughout the state. We will await further announcements on that.
Update (3/17/20)— Suffolk and Cambridge are closed to the public until at least April 6. Currently, they are both still processing electronic recordings for recorded land. All Land Court recordings and plans must be sent in by overnight or regular mail.
We have just received a chart below showing current Registry status:
I remain concerned, however, that all Registries will be forced to shut down and will not offer in person, mail or electronic recordings. If that occurs, we will see a potentially catastrophic impact to real estate in Massachusetts. Title insurance companies have assured its attorney agents that they will offer “gap coverage” in case recordings are delayed. This coverage offers insurance coverage between the time of the physical closing and the time of actual recording of documents at the registry. However, it remains to be seen how this will play out. Will mortgage payoffs still be processed even though deeds will not be recorded? Will sellers allow buyers to get keys and move into homes if deeds aren’t recorded and their sale proceeds are held in escrow? We will need to work through these issues.
I am also concerned if COVID-19 starts hitting closing attorney offices. If a lawyer or staff member is infected, it could result in the quarantine of their entire office, essentially shutting it down for some time.
COVID-19 Contingency Provision
In my previous post, I discussed a new COVID-19 Impact Clause for Offers Purchase and Sale Agreements. (Sample language below). It is imperative that these clauses are used in both Offers and PSA’s. It’s also very important that all parties and their attorneys work together cooperatively throughout this crisis, acknowledging that there will likely be substantial impacts and delays. The goal, as always, is to get to the closing and complete the deal, by any means necessary.
COVID-19 Impact Provision. The Time for Performance may be extended by either Party by written notice for an Excused Delay which materially affects the Party’s ability to close or obtain financing. As used herein an Excused Delay shall mean a delay caused by an Act of God, declared state of emergency or public health emergency, pandemic (specifically including Covid-19), government mandated quarantine, war, acts of terrorism, and/or order of government or civil or military authorities. Notwithstanding anything to the contrary contained in this Agreement, if the Time for Performance is extended, and if BUYER’S mortgage commitment or rate lock would expire prior to the expiration of said extension, then such extension shall continue, at BUYER’S option, only until the date of expiration of BUYER’S mortgage commitment or rate lock. BUYER may elect, at its sole option, to obtain an extension of its mortgage commitment or rate lock. Notwithstanding the foregoing, said Extension shall not exceed [insert number of days].
Virtual and Remote Closings
Another impact that we are already seeing is that parties to the real estate transaction are afraid of traveling outside their homes right now (or even being visited at home) and being in contact with other people, especially those who are high risk. My colleagues and I are working on an emergency executive order for Gov. Baker to sign which would temporarily authorize remote or virtual closings using such technology as Zoom and Docusign.
Update (3/17/20): The Supreme Judicial Court today ordered that, because of the public health emergency arising from the COVID-19 pandemic, beginning tomorrow (March 18, 2020) and until at least April 6, 2020, the only matters that will be heard in-person in Massachusetts state courthouses are emergency matters that cannot be held by videoconference or telephone. Each of the seven Trial Court departments, in new standing orders to be issued today, will define emergency matters for their departments. As a result of the SJC order, courthouses will be closed to the public except to conduct emergency hearings that cannot be resolved through a videoconference or telephonic hearing. Clerk’s offices shall remain open to the public to accept pleadings and other documents in emergency matters only. All trials in both criminal and civil cases scheduled to commence in Massachusetts state courts between today and April 17, 2020, are continued to a date no earlier than April 21, 2020, unless the trial is a civil case where the parties and the court agree that the case can be decided without the need for in-person appearance in court. Where a jury trial has commenced, the trial will end based on the manifest necessity arising from the pandemic and a new trial may commence after the public health emergency ends. Courts, to the best of their ability, will attempt to address matters that can be resolved or advanced without in-person proceedings through communication by telephone, videoconferencing, email, or other comparable means.
In addition to the closings on March 16-17, the Massachusetts Court System announced over the weekend major “triage” changes reducing the number of persons entering state courthouses. These rules are effective Wednesday March 18, 2020. A link to all of the new changes can be found here — Court System Response to COVID-19. A summary of each court and respective changes are as follows:
Superior Court — All jury trials postponed until April 22. Motions handled by individual judges with preference for telephonic hearing and postponement where necessary to limit number of people entering courtroom. Emergency matters may proceed normally. The new Standing Order 2-20 can be found here.
Housing Court — All cases including evictions (except emergencies) postponed until after April 22. Matters may be heard earlier upon a showing of good cause. New Housing Court Standing Order is here.
Probate and Family Court — Trials postponed until May 1. Motions and pre-trials heard telephonically or postponed until after May 1. Modification complaints won’t be heard until after May 1. New Probate and Family Court Standing Order 1-20 is here.
District Court — No jury trials until after April 21. All criminal appearances rescheduled for 60 days, and no earlier than May 4. Arraignments and Bench trials may proceed. The new District Court Standing Order is here.
Land Court — All trials postponed until after April 21. All other motions and proceedings shall be held telephonically at judge’s discretion. Registration of title documents should not be done in person. Mail or email is now preferred. (Not sure how that will work). New Land Court Standing Order 2-20 is here.
Appeals Court — Oral argument for March will be telephonic.
Supreme Judicial Court — Please see the Court’s website.
As you can glean from the changes, virtually all trials are being pushed out through the end of April. Motion hearings are court specific with telephonic hearings being substituted for in-person hearings. Of course, if the courts are all shut down, all bets are off. With no staff, the courts will not even be able to handle new filings. The system would just stop in its tracks, except for the most emergency of matters.
Lender/Financing Delays
This week we will see if there are any major disruptions to lenders’ ability to provide financing. I am seeing some smaller mortgage companies moving to remote employee staffing. I’m also hearing about appraisal delays. If there are government employee impacts such as at the IRS for processing tax transcripts, there could be delays with underwriting. I think it’s inevitable that we will be seeing lender delays moving forward.
Municipal Closings
I am also hearing of closings of municipal departments, which may affect the availability of final water/sewer readings and possibly smoke detector certificates. Title 5 inspections could also be impacted.
25 Person Social Gathering Restriction
New restrictions on crowd sizes that Gov. Charlie Baker issued on Sunday, March 15, could upend open houses. The restrictions banned gatherings of 25 or more people. Brokers seemed to anticipate a possible drop-off in attendance, even before Baker’s restrictions and despite strong numbers the past couple of weeks. “Next week may be a different story,” Jason Gell, a Keller Williams broker and president of the Greater Boston Association of Realtors, said on March 12. “Unfortunately, any decline in open houses or listings is likely to make the conditions for buyers even more difficult.”
Social Distancing, School Closures and Possible Lockdown
The impacts of COVID-19 are manifesting not necessarily in the actual infection and sickness of patients (which I’m not discounting at all) but all the measures we are taking to “flatten the curve.” I want to urge all my readers that COVID-19 could wind up being the worst global pandemic since the Spanish Flu and should be taken as seriously as life and death. If you can work from home, do that and don’t go into the office. If you can arrange for remote employee access, please do that. Take advantage of technologies like Zoom, Docusign and Dotloop. Please keep your kids at home. No playdates, family gatherings or hang-outs. They say we are only 2 weeks behind Italy and you see what’s going on there. Stay safe! More updates to follow as I get them.
PotentialImpacts: Registry of Deeds Closings, Financing Delays, New Covid-19 PSA Clause, Housing Market Slow Down?
The Coronavirus (COVID-19) is a highly infectious respiratory virus, which originated in Wuhan, China, and has spread across the globe, wreaking havoc on financial markets, public health systems, schools, universities, and daily lives. As of March 9, there are 729 reported cases in the US, with 27 deaths. Here in Massachusetts, as of March 9, there are 41 cases with no reported deaths. Infectious disease experts predict that the virus will continue spreading across the United States, affecting just about every aspect of our lives.
Here in Massachusetts, we are beginning to see significant impacts. Harvard University just cancelled all classes in favor of online instructions. Mayor Walsh has cancelled the St. Patrick’s Day parade. Some schools are closing temporarily and cancelling events. Companies are cancelling conferences and restricting travel. And of course, the stock market has dropped precipitously.
Likewise, in the real estate industry we are starting to see impacts as well. Despite the COVID fear factor, most agents are still reporting robust attendance at open houses and market activity, as confirmed by Curbed Boston. However, that may soon change as the virus gets increasingly widespread and the impacts to the financial markets begin to set in. I’m going to outline some potential impacts going forward, and I’ll update this post as developments emerge.
Registry of Deeds and Court Closings
Update (3/13/20): Suffolk and Salem Registry have shut down public closings. Only title examiners and attorneys are allowed access. They are still recording documents.
We are starting to see court and government building closings in other states. Federal courts in New York’s Southern District, including Manhattan, are restricting entry. No one will be allowed in who traveled within the past 14 days to China, South Korea, Japan, Italy or Iran, or who had close contact with someone who has. Trials have been postponed in Seattle and Tacoma courts.
No closings have been announced here in Massachusetts, but it’s a possibility. Virus impacts may result in Registries of Deeds and the Land Court being forced to closed or operate with a skeleton staff.
Fortunately, we have electronic recording capabilities here in Massachusetts. If the registries are closed, hopefully they will still allow for e-recording which should enable closings to keep on track. However, registry staff must still examine each electronically recorded document so there still could be impacts. We don’t know the fully extent of the impacts, if any.
Lender/Financing Delays
I have not yet heard of any major disruptions to lenders’ ability to provide financing. However, it’s not out of the realm of reason if companies are requiring their employees to work from home, etc. Further, if there are government employee impacts such as at the IRS for processing tax transcripts, there could be delays with underwriting. The same is true if appraisers cannot get out into the field and do their reports. I’ve already heard of at least one lender asking an attorney for a COVID-19 delay provision in a purchase and sale agreement, which brings me to the next topic…
COVID-19 Delay Clause In Purchase and Sales Agreement
Due to the various impacts and possibilities for delays as outlined above, we are already seeing requests for language dealing with the Coronavirus in purchase and sales agreements. As just mentioned, there may be lender delays affecting a buyer’s ability to obtain timely financing due to virus impacts. Buyers and sellers may be subject to quarantines, or if they are traveling, they may be stuck in a public health purgatory like the Princess Cruise ship. If Registries are closed and no e-recording is allowed, then closings will need to be cancelled or rescheduled. My colleagues and I are working on a new COVID-19 clause that will balance all of these concerns.
Our draft provision (subject to change) is as follows:
COVID-19 Impacts. The Time for Performance may be extended by either Party by written notice for an Excused Delay which materially affects the Party’s ability to close or obtain financing. As used herein an Excused Delay shall mean a delay caused by an Act of God, declared state of emergency or public health emergency, pandemic (specifically including Covid-19), government mandated quarantine, war, acts of terrorism, and/or order of government or civil or military authorities. Notwithstanding anything to the contrary contained in this Agreement, if the Time for Performance is extended, and if BUYER’S mortgage commitment or rate lock would expire prior to the expiration of said extension, then such extension shall continue, at BUYER’S option, only until the date of expiration of BUYER’S mortgage commitment or rate lock. BUYER may elect, at its sole option, to obtain an extension of its mortgage commitment or rate lock. Notwithstanding the foregoing, said Extension shall not exceed [insert number of days].
Impact On The Real Estate Market
If you’re in the market for a house, all this uncertainty might have you worried about the housing market. Will it suffer a swoon similar to Wall Street? There are a few ways the virus could affect the housing market that you should be aware of. However, I think we can breath a sigh of relief, because a housing catastrophe on the scale of the 2008 financial crisis is almost certainly not going to happen.
The good news is that mortgage interest rates are still at historic lows. However, I’m also hearing that a lot of lenders are at full capacity with demand for both refinances and purchases so rates may be heading up in the very near future.
I think as we are heading towards a global recession and the continuing daily life impacts of the virus, we are going to see a slowing down of the real estate market in general. Uncertainty is the hobgoblin of the home buyer. Indeed, this is exactly what Lawrence Yun, Chief Economist at the National Assoc. of Realtors is saying:
I hope I’m wrong. Comment below or shoot me a line ([email protected]) and tell me what you’re seeing out there. I’ll keep you posted with any developments.
Richard D. Vetstein, Esq. is regarded as one of the leading real estate attorneys in Massachusetts. With over 25 years in practice, he is a four time winner of the "Top Lawyer" award by Boston Magazine, a "Super Lawyer" designation from Thompson/West, and "Best of Metrowest." For Rich's professional biography, click here. If you are interested in hiring Rich or have a legal question, email or call him at [email protected] or 508-620-5352.
