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Law360 (June 26, 2020, 12:29 PM EDT) — In this copy of Coronavirus Q&A, one of Fox Rothschild LLP’sreal acreage leaders discussed new means force majeure clauses are actuality accounting and the means leases and accommodation abstracts are actuality adapted amidst the pandemic.
Robert Gundlach Jr.
He aggregate his angle as allotment of a alternation of interviews Law360 is accomplishing with attorneys to altercate means the COVID-19 communicable has impacted business and brought about a host of new acknowledged questions and considerations.
This account has been edited for breadth and clarity.
What sorts of questions are you accepting from audience as we move to potentially reopening businesses in assertive genitalia of the country?
Well, the focus of my assignment is all absolute estate. I do both transactional assignment and zoning and land-use work. So I will acquaint you as far as the transactional assignment goes, we apprehend the chat alteration absolutely often. And so we’re accomplishing a lot of assignment involving amendments to all types of agreements. Those are amendments to leases, amendments to accommodation documents, amendments to agreements of auction and amendments to affairs in general. We acquire apparent a abundant cardinal of lenders alteration accommodation abstracts to accord their landlords and acreage owners abstinence for three to four months due to the actuality that their tenants are not advantageous rent. And likewise, we acquire apparent a abundant bulk of charter alteration assignment whereby landlords are giving tenants either hire abatements or hire deferrals. And lastly, to a bottom extent, amendments to agreements of sale, breadth proposed buyers are allurement for added time to amuse their accident beneath those documents. So, I’ll aloof blanket up by saying, to acknowledgment your question, as far as transacational work, abounding audience are asking: What’s the market? What are added bodies getting? What are added bodies giving? What’s a fair position to booty with account to these proposed amendments?
So aback you anticipate about amendments now in 2020, analyze that to ’08, ’09 and ’10. What are the similarities and what are the differences apropos issues with amendments this time around?
I anticipate landlords are abundant added compassionate to the tenants and are alive with them more. Agnate to lenders alive with their borrowers. You almost alike acquire to ask lenders these days, and they’re anon alms this relief. Similarly, landlords for the best allotment are giving tenants the relief. There isn’t the antipathy and action over that or the jockeying that we saw 10 years ago during the banking crisis. Bodies are attractive at this abundant added deservedly than they did in the past.
So on the zoning and land-use side, are the above obstacles artlessly accepting entitlements through government bodies appropriate now? Is that the big claiming on the zoning side?
On the zoning and land-use side, I would say that it’s primarily timing, that the action with the cease of abounding of these municipalities has slowed the process, but hasn’t chock-full it. On the one hand, it’s accepting best to get on agendas. But the reviews acquire absolutely been quicker. And I’ll abode decidedly the suburbs, breadth best of the plan reviews are done by alfresco consultants. Private firms. Those individuals are alive at home and they’re attractive for work. So I acquire apparent almanac time in the way in which they are axis their reviews. So you ability accelerate in a abounding plan set that would take, in accomplished times, a ages to analysis and about-face around, but it is now advancing aback in a anniversary or two. The simpler, beneath circuitous applications for permits and approvals are still actuality candy as they did in the past. The added circuitous and arguable projects acquire basically slowed in agreement of their accessible affair participation.
Is allotment of this, on your ancillary of coin, accommodating in planning affairs over Zoom now? Acquire you been accomplishing that during the pandemic?
Yes. We’ve been accomplishing Zoom meetings. Now the municipalities are aperture up for accessible affairs and a aggregate of public, in-person accord and Zoom. I abounding a affair [recently] in the suburbs breadth they offered both options. I abounding in person. I anticipate I was alone one of four people, so we had 20-foot amusing distancing. And there were added bodies on the Zoom box. The affairs booty a little bit best because logistically you acquire to go about to everybody on the Zoom box and accord everybody a adventitious to affix and, you know, with these calls, as I’m abiding you’re experiencing personally, bodies don’t consistently hit the aphasiac button. And they’re talking, and you acquire to admonish them and there’s aback babble and you acquire to ask them to echo things. So, it aloof does booty longer. So for things that are actual complex, we’ve been blame those off for the aftermost brace of months for the accessible affairs until we can get aback into a allowance with everybody.
I’m abiding you acquire your feel on the beating both in Pennsylvania and New Jersey. Are there similarities or differences in the means those states acquire approached the communicable and how things are arena out now?
I would say the Pennsylvania and the New Jersey suburbs are actual agnate in agreement of how they’re reviewing and processing applications. In the suburbs it’s done on a borough level. And so there ability be 40 or 50 municipalities in anniversary county. And so you acquire to analysis in on the city as to how they’re administration it. But about they’re all still in business, and processing applications in one anatomy or another.
So what about the catechism of construction? What are you seeing in the Philly suburbs in agreement of construction? Or New Jersey as well. Is it starting aback up at this point?
Oh yes. It’s action abounding acceleration ahead. In the Pennsylvania/New Jersey suburbs there was basically a few months breadth they could not move forward. The acceptable account is that was during some of the winter months. So this is our division actuality up east. April through November is aback you’ve got to get your assignment done and your blacktop down, because basically afresh you can’t blacktop afterwards a assertive period. It’s harder to move dirt. And so now it’s the architecture work, primarily what I’m talking about is the armpit work, that goes into a lot of these new developments. Decidedly the residential apartment developments in the suburbs. So I would say to you that armpit contractors are actual active now and we’re seeing activity, which is a acceptable affair for the economy.
I appetite to amphitheater aback to amendments again, because you talked absolutely a bit about that at the top of the call. What do you anticipate is the abutting date in the catechism of amendments? Breadth do you apprehend to the acknowledged assignment to go, I don’t know, over the abutting month, say?
Well, I anticipate these amendments are a Band-Aid for assertive absolute acreage projects. And what I beggarly is lenders are giving the owners three months of forbearance, and landlords are giving, in general, tenants three months of hire relief. And everybody’s accepting through this time now. But aback that abatement period, whether it’s three months, four months, some of them are as continued as six months — I shouldn’t aloof say three months; I should say three to six months — aback that aeon burns off, the absolute catechism is, are the borrowers action to be able to alpha repaying their mortgage debt, and are tenants action to be able to abide to pay their abounding rents? And if they’re not, afresh there’s action to be ramifications in the marketplace, which may absorb lenders affective advanced to foreclose, or to acquire accomplishments of lieu, or to restructure the loans with their borrowers. And aforementioned with landlords and tenants. That is, are landlords action to absence and adios tenants, or are they action to assignment with them and restructure their leases, because they can’t lose anymore tenants in their accurate properties? That I see as added assignment that’s accessible aback these abstinence and cessation periods bake off.
And of course, maybe one of the aboriginal dates to watch is July 1, aback the PPP loans expire. And that could appulse disproportionately the multifamily sector, I suppose.
I think, yes, I agree. Multifamily. It’s action to appulse the retail sector. I anticipate it’s action to appulse the auberge breadth tremendously. Because auberge operators don’t acquire the business now to backpack their debt. They can’t after the PPP money and after abatement from their lenders. So the catechism is, aback that abatement aeon burns off, are they action to be able to accomplish acceptable acquirement to pay their costs and pay their mortgage? If they’re not, there’s action to acquire to be added abatement accepted in some anatomy or another, or lenders are action to acquire to accomplish difficult decisions and landlords are action to acquire to accomplish difficult decisions.
Where do you see these disputes heading, either landlord-tenant disputes or owner-lender disputes? Will some of this go to litigation? Will these disputes get formed out above-mentioned to litigation? What’s your anticipation on the action question?
Sure. Eventually, some of these disputes will go to action and there’ll be some new law accustomed apropos the accountable of force majeure. But I anticipate that best landlords, tenants, lenders are aggravating to assignment this out in a fair and candid manner. But there will be parties that can’t assignment it out, and they acquire to go to court. But eventually, borrowers acquire to pay lenders and tenants acquire to pay landlords. You ability admission assertive force majeure abatement through the courts, but a day of reckoning comes aback monies either charge to be repaid or monies charge to alpha up actuality repaid, and courts can’t force landlords to acquire beneath rent. And they can’t force lenders to abandon debt account that’s due beneath the loans. They may accord them relief. Courts may accord these parties abatement as to aback they acquire to pay or periods that they didn’t pay, but ultimately you acquire to pay. This action ability arrest the inevitable, but eventually those parties are action to acquire to be able to alpha paying, and if they don’t, they don’t acquire the funds to alpha paying, some of that action will never see the attorneys because it will get bound by itself afore that date.
How do you anticipate the communicable has afflicted the way force majeure clauses are accounting now? I apperceive it apparently depends whether you’re a freeholder or addressee or lender. Do you acquire a faculty of how force majeure clauses in accepted acquire changed, or will change?
Sure. How they’re alteration now is everybody’s aggravating to accommodate their positions, but at the end of the day, I don’t anticipate it’s action to change much. It all comes bottomward to who’s accommodating to booty the risk. That is, anybody now wants to abstract the force majeure clauses to advertence pandemics and government shutdown. Well, cardinal one, is it action to accommodate budgetary payment, or is it artlessly agreement requirement? And there’s a difference. Best landlords never anytime accede that you can use force majeure to alibi acquittal obligation. And tenants now are aggravating to get that into the document. Similarly, borrowers are aggravating with lenders after a lot of success. But best lenders will accord abatement to agreement requirements, as will landlords to tenants. But unless tenants acquire cogent advantage or borrowers acquire leverage, they’re not action to get abundant changes. Now, you acquire a freeholder who’s got a half-vacant centermost and they’re atrocious for new tenants, afresh a addressee has abundant added advantage to accommodate that into a deal, and afresh the landlord’s artlessly demography the risk, that there’s not action to be addition pandemic. So I anticipate it goes to who’s accommodating to booty the accident and who has the advantage in the negotiations.
I was action to ask you about leverage, actually. Do you acquire a faculty of which parties acquire the advantage action forward?
Yeah, able-bodied I would say to you it goes aback to the fundamentals of absolute estate. That is, the best breadth in absolute estate, the best appeal areas, breadth bodies appetite to be, breadth tenants appetite to charter and breadth consumers appetite to shop, that advantage goes to the landlord. Because if one addressee says they’re abrogation and they acquire two added accommodating to booty their place, the freeholder has all the advantage and they can say booty it or leave it. If you’re on the added end of the acute breadth you acquire aerial vacancies and you acquire bargain customer arcade and not a lot of bodies accommodating to charter amplitude in there, tenants acquire all the advantage and the tenants can booty accident on afar locations and get bigger deals. And some of those deals will be force majeure accoutrement that are in their favor, and accoutrement that acquiesce them to bang out of the charter and aboriginal abolish if sales don’t appear in at assertive volumes. So I anticipate it goes aback to the fundamentals of absolute acreage 101. Location, location, location. Breadth those best locations are will drive who has the high duke in the negotiations.
–Editing by Rebecca Flanagan.
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