Scott Renaud, Foundry Commercial | Quino Martinez | Nicole Cuccaro
This year, forecasters at the National Oceanic and Atmospheric Administration are predicting another above-average Atlantic hurricane season, which runs June 1 through November 30. NOAA is predicting between 14 and 21 named storms for the 2022 hurricane season, including 3 to 6 major hurricanes. As of the date of this article, a system near Mexico’s Yucatan Peninsula could become the first named storm of the Atlantic hurricane season. Hurricanes and tropical storms will likely adversely impact the real estate industry in the United States, and specifically Florida, during the upcoming season.
According to a recent report by Yale Climate Connections, 2021 was the third-costliest year on record for weather disasters resulting in approximately $343 billion in damages. To put this in perspective, 2021 alone was almost as costly as the storms for the years 2016 through 2020 combined, which resulted in aggregate losses just short of $400 billion, according to The Weather Channel. If 2022 is as active as the NOAA predicts, the losses will likely be higher than ever this season when combined with the current supply chain issues and staggering oil prices.
In preparation for the upcoming hurricane season, Lowndes and Foundry Commercial have teamed up to provide a few helpful tips for both landlords and tenants.
Take a moment to pull together your certificates of insurance and confirm that any required coverage under the lease agreement is in effect, including naming appropriate parties as additional insured(s). For the tenant, don’t assume that the landlord’s insurance will cover your furniture, fixtures, or equipment. Most landlord coverages are for the building structure and the tenant bears responsibility for the personal property and any tenant-specific improvements located within the leased premises. Landlords and tenants should also be familiar with any provisions in the lease that specifically set forth procedures for the handling of insurance proceeds.
- Casualty Provisions
The casualty provision establishes each party’s respective responsibilities to repair damage to the leased premises and/or the building in which the same are located in the event of the full or, in some cases, partial destruction. This provision may also include provisions regarding the abatement of rent in the event of the prolonged loss of use of the leased premises.
- Utility Services Provision
In the event of a loss of utility services to leased premises, this provision may provide for the abatement of rent until such time as service is restored; however, many such abatement rights are limited to loss of services caused by landlord and may not apply in the event of a hurricane.
- Maintenance and Repair:
Review the maintenance and repair provision of the lease to determine the parties’ respective obligations with respect to the leased premises and the systems serving the same. The responsible party should schedule pre-season and pre-storm check-ins with their critical vendor response team including restoration, roofing, general contracting, electrical and ground to name a few.
Collaborate with your landlord and your municipality to understand how post-storm access to the property and the region will be administered. Some municipalities will restrict access to essential personnel post-storm and pre-registering with them is a critical step.
Take precaution to keep your electronic assets protected from water damage as best you can. Any backups that may exist on property should be relocated somewhere safe. Anticipate power outages by having car chargers for your phone, extra portable chargers, and hard printing critical contacts in case of network outages.
- Force Majeure
Many leases include a force majeure clause which may extend the time frame for satisfaction of an obligation in the event of a hurricane, tropical storm, or other severe weather event. If a deadline is looming for early September, landlords and tenants should determine whether force majeure may permit the extension or tolling of such deadline and comply with any related notice requirements.
Experience tells us that many of the personal injuries from hurricanes occur after the storm has passed. When returning to your property, please ensure you have the “all clear” from property management and bring professionals with you to keep you safe.
“As with any unpredictable weather event, planning ahead can alleviate the stress of many of the last-minute preparations and post-event impacts to the real estate you lease or own,” stated Scott Renaud, Chief Operating Officer at Foundry Commercial. “If we learned anything from the past year, it’s the importance of being flexible and nimble – especially as it relates to office properties – and going into this hurricane season with contingency plans will serve both tenants and landlords for years to come.”
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.