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New Decision Shows the Importance of Strongly Drafted Force Majeure Provisions [Lowndes Leasing Lawyers]

February 25, 2021

Shareholder Quino Martinez and Associate Samantha Duran discuss how a recent bankruptcy decision should serve as a cautionary tale to all commercial landlords when drafting a lease. 


Over the course of the last year, commercial landlords have become all too familiar with the legal principles wielded by tenants to excuse the payment of rent. Impossibility, impracticability, and frustration of purpose have been widely cited by tenants who have argued that the COVID-19 pandemic has made it impossible for them to run their business and, as a result, to make their rental payments.

The success of these arguments has hinged, in large part, on the language of the force majeure provisions in their leases. A force majeure provision excuses a party from their obligations under a contract if they are unable to perform due to an unforeseeable event which is outside of the reasonable control of the parties.

While a force majeure provision typically does not apply to tenant’s monetary obligations, a recent decision by the United States Bankruptcy Court for the Southern District of Florida has once again reinforced the importance of clear, concise and accurate drafting when it comes to lease provisions.

In In Re Cinemex, a movie theater operator argued that its obligation to pay rent should be excused from March 20, 2020, when Florida Governor Ron DeSantis closed movie theaters, until such time as the tenant elected to reopen its business. Further, Cinemex sought reduced rent for the time in which state regulations required them to operate at 50% capacity. While the Court held that it was impossible for Cinemex to operate its business during the shutdown, the landlord argued that the force majeure provision did not excuse tenant’s obligation to pay rent, even in light of a force majeure event. The force majeure provision in the lease provided, in part:  [Read more]

This is an excerpt from a blog post originally written on Lowndes Leasing Lawyers.


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.
Joaquin

Quino Martinez focuses his practice on commercial leasing and real estate investment, development and financing. He represents public and private real estate investors, developers, property management companies, brokerage firms and national lenders, as well as non-profits. 


Being the third generation in his family to be named Joaquin, his parents distinguished him from his father and grandfather by calling him Quino (pronounced “key-no”). Having his name constantly mispronounced doesn’t bother Quino. His clients get it right, and even more significantly, they respect that he gets their business right. No trite statements here; just the facts: Quino cares deeply about his clients, their businesses and their families.

His clients include public and private real estate investors, developers, property management companies, brokerage firms, and, from time to time, non-profits. Quino has represented these entities in the acquisition, financing, development and disposition of multifamily developments, industrial properties, office buildings, shopping centers, restaurants, hotels, golf courses and other resort related developments, retirement communities and vacant land. He has also represented national lending institutions in connection with commercial loan transactions, workouts and loan restructuring.

Whether focusing on commercial leasing, real estate investment and development or financing, Quino takes “ownership” of his clients’ transactions. Described by his clients as a deal-maker, Quino and his team work hard to ensure that their deals close in a timely manner and that their clients’ objectives are met. Qualities honed by his Jesuit education – integrity, initiative in service of others, patience, persistence and excellent communication – have endeared him to clients and colleagues alike. Those same traits afforded him leadership roles with the Board of Governors of the State Bar of Georgia, the City of Orlando Board of Zoning Adjustment and Habitat for Humanity of Greater Orlando. He also initiated a community partnership and sustained mentoring program between Lowndes and the FAMU College of Law.

Licensed to practice law in Florida, Georgia and Texas, Quino is proud to be connected to each of those states (but particularly the Lone Star State), and routinely assists clients in matters in each locale. Mostly, he is proud of his deep relationships with his clients and colleagues – who have no trouble pronouncing his name.

Samantha

Samantha Duran is an attorney in the firm’s Real Estate Group. She focuses her practice in the areas of real estate development, finance and transactions, condominiums, property owners’ associations, commercial leasing, commercial lending and title insurance.

Samantha earned her juris doctorate from the University of Florida Levin College of Law, where she graduated cum laude and was selected for Order of the Coif. She received her bachelor’s degree in legal studies and political science from the University of Central Florida and was a member of the Phi Delta Phi legal honor society.

Prior to joining Lowndes as an attorney, Samantha was a summer clerk with the firm. While at law school, she served as a legal extern for both the U.S. District Court for the Middle District of Florida and the University of Florida Self Insurance Program. She was also articles editor for The Florida Law Review, a research assistant for Professor William Page, and a teaching assistant for Legal Writing and Appellate Advocacy classes, as well as a volunteer for the Restoration of Civil Rights Project.

In her free time, Samantha enjoys training at Orange Theory Fitness and hiking.

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