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What a Force Majeure Is and How Your Florida Commercial Lease’s Force Majeure Clause Can Help in This Time of Global Pandemic

As of 11:59 p.m. on March 24, 2020, the City of Miami was under a “shelter in place” order due the COVID-19, or novel coronavirus, pandemic. The announcement stated that the order would remain in effect “until further notice.” These unprecedented conditions may have many businesses asking themselves… what will happen if I don’t perform as required under my lease (such as failing to pay rent)? If my landlord sues my business for breach of the lease, is there any way I can mount a successful defense? The answers to those questions are: it depends and… it depends. Each situation is unique depending on exactly how the terms of your lease agreement were worded. To get the customized advice you need for your specific situation, be sure to get in touch with an experienced South Florida commercial lease attorney.

Clients may consider substantial parts of their leases to be just “form language,” but skillful commercial attorneys know that many things the client writes off as perfunctory actually aren’t, and actually require close attention — needing to be carefully negotiated and skillfully drafted.

Take, for example, the clause in your commercial lease agreement that excuses your performance. Commercial tenants in Florida are probably a bit more aware of these clauses than many businesses elsewhere. That’s because one of these valid excuses often is “acts of God,” which refers to natural disasters like hurricanes and tropical storms.

A force majeure may also be a listed condition excusing performance in your contract. Force majeure generally refers to something unforeseen that was outside your control and that prevents you from fulfilling your obligations under the lease. A carefully negotiated and well drafted force majeure clause in a commercial lease agreement can go a long way toward protecting you, as the range of events that will or won’t constitute a force majeure varies depending on exactly how your force majeure clause was written (or if your agreement lacked a force majeure clause entirely.)

Your clause potentially can cover everything from hurricanes to labor strikes… and beyond

Florida law allows some latitude in what you can list in a force majeure clause. For example, a few years ago, a seller of a town home in Port St. Lucie placed in its contract with the buyer a force majeure clause that absolved the seller of responsibility in the event of any of “acts of God, weather conditions, restrictions imposed by any governmental agency, labor strikes, material shortages or other delays beyond the” seller’s control. That relatively broad clause was permissible according to the federal 11th Circuit Court of Appeals.

Florida law says that contract terms like force majeure clauses should be “narrowly interpreted” by the courts, which is another reason why the clause in your agreement needs to be very carefully drafted. Generally speaking, the law says that, if a condition isn’t expressly in the agreement, then that condition isn’t a force majeure event.

In other words, force majeure clauses are just one more example of how it pays to have a legal team with the tools and experience to advocate for you, and protect you, along every step – and in every paragraph – of your commercial lease arrangement. For that kind of skillful legal advocacy, depend on the knowledgeable South Florida landlord-tenant attorneys at Stok Kon + Braverman. Our commercial lease attorneys have many years of helping our clients, both landlords and tenants, get the best lease agreements possible to promote their business’ interests.

Contact us online or by calling (954) 237-1777 to schedule your consultation.

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