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Closing Interrupted? Check Your Force Majeure Provision

March 23, 2020

By: Jennifer Dixon

As the country grinds to a halt during the public health emergency, many are wondering about the effect it may have on their pending real estate closings and other sales transactions. A good place to start is by looking for the force majeure clause in the governing contract.

The force majeure clause defines what happens when an interrupting event occurs that is outside the control of the parties (acts of God, hurricanes, war, famine, etc.). Such a clause will often afford the parties relief from liability if one of these unforeseen events results in non-performance. Typically, a force majeure clause will excuse the parties’ non-performance (i.e., closing the transaction) for a certain number of days after the unforeseen event causing the delay has resolved. A public health emergency, such as the current coronavirus (COVID-19) pandemic response, especially one that results in an inability to record documents or to obtain financing or insurance through a reputable lender or carrier, could trigger the force majeure provision.

If the force majeure provision in your contract is not clear as to whether the COVID-19 response is a qualifying event, the parties may be able to amend their contract to include it specifically. If you have a pending closing or transaction that you are not sure is protected by a force majeure clause, an attorney can guide you.

If you would like to read more about force majeure clauses, in general, click here.

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This article is informational only. You should consult an attorney before acting or failing to act. The law may change rapidly and no warranty is given. LOWNDES DISCLAIMS ALL IMPLIED WARRANTIES AND WITHOUT LIMITATION, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. ALL ARTICLES ARE PROVIDED AS IS AND WITH ALL FAULTS. Consult a Lowndes attorney if you wish to establish an attorney/client relationship.

Jennifer R. Dixon is a pragmatic problem-solver. A shareholder in the firm’s Litigation & Trial Practice Group and board certified in Appellate Law by the Florida Bar, she enjoys working closely with clients to determine the best solutions for their business or personal needs and strategizing how to achieve the best outcome possible.

An experienced and versatile civil litigator, Jennifer innately understands when an issue must be decided by a jury or a judge. She is also a certified mediator who recognizes when creative solutions can be used to effectively resolve a dispute on the parties’ terms. Whether in the courtroom or at the settlement table, Jennifer is a zealous advocate who works tirelessly on behalf of her clients.

Jennifer handles civil, family law, and probate appeals on behalf of litigants and amicus curiae, and she has successfully defended judgments and obtained reversals in both state and federal appellate courts. She is also experienced handling administrative appeals before the Florida Division of Administrative Hearings.

Acting as outside general counsel for several private enterprises, Jennifer regularly provides recommendations on issues related to risk assessment, litigation and compliance oversight, and contract administration. Her clients come from a wide variety of industries, including real estate, hospitality, construction, themed entertainment, healthcare and outdoor advertising.

Jennifer is also an experienced family and marital lawyer, frequently handling matters concerning divorce, child custody, support, and prenuptial agreements.

The depth and diversity of Jennifer’s legal experience affords her perspective in working with clients across all industries with varying legal needs.

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