Originally published by Grace Winters and Timi Anyon Hallem in NAIOP's Summer 2020 Issue
It’s crucial to review contracts during uncertain times.
As global markets, economies and governments marshal their resources to respond to the COVID-19 pandemic, real estate professionals must assess their options to address and absorb the impact. A critical and time-sensitive activity is analyzing the force majeure provisions in important agreements and preparing to make creative arguments to achieve the most favorable outcomes.
What is Force Majeure?
A well-written force majeure provision broadly excuses nonperformance of contractual obligations when there are unavoidable events outside the party’s control that were not reasonably foreseeable, either when the contract was written or in the exercise of due care. Typical clauses include “acts of God” (such as earthquakes, floods or other natural disasters), actions — or inactions (such as unanticipated governmental action, delay or restraint, terrorism and wars), and usually some version of a catch-all provision referring to “other events outside of the control of the parties.” Many force majeure provisions specifically exclude increases in the cost of labor, fuel or materials; labor shortages; economic hardship; and transportation delays, unless they are affecting a wide area beyond the property in question.