Topical and timely, In re Hitz, 2020 WL 2924523 [Bankr. N.D. Ill. 2020] presents as a useful quarantine-era case that interprets the scope of a force majeure clause in a restaurant lease.
The debtor filed for bankruptcy protection in mid-March 2020 after failing to pay rent for that month. The creditor moved to modify the automatic stay and sought post-petition rent under 11 U.S.C. 362 and 365, respectively. In response, the restaurant debtor argued that it was excused from paying post-petition rent based on the lease’s force majeure clause [the “FM Clause”].
The FM Clause excused, the restaurant’s lease performance where its obligations were delayed or hindered by “governmental action or inaction, and “orders of government.” Notably, the FM Clause specifically carved out an exception for lack of funds. It stated: [l]ack of money shall not be grounds for Force Majeure.”
The debtor argued that the FM Clause was triggered by Illinois Governor Pritzker’s Executive Order 2020-7 [the “EO”] which banned Illinois restaurants from offering food and drink for on-premises consumption for the two-week period ending March 30, 2020. The EO did, however, encourage restaurants to provide off-premises consumption via delivery and curbside pick-up.
The Court first held that because rent was due March 1, 2020 – fifteen days before the debtor’s petition, the FM Clause did not excuse debtor’s March 2020 rent payment.
To decide whether the FM Clause applied to the following months [e.g. did it excuse rental payments occurring after the March 16, 2020 petition date?], the Court framed the issue as one of basic contract interpretation
In Illinois, a force majeure clause will only excuse contractual performance where the triggering event is the proximate cause of the party’s nonperformance.
The Court found the EO plainly activated the FM Clause. The EO constituted governmental action and an “order of government” that “hindered” the debtor’s performance of its lease obligations by lopping off its on-premises food and drink revenue.
The Court rejected the creditor’s first argument that the FM Clause didn’t control because the banking and postal systems were still open. According to the creditor, despite Covid-19, the tenant could have still written rental checks and mailed them to the landlord. The Court deemed this argument specious; it did not address the debtor’s force majeure argument – that the inability to sell food and drink on-site made it impossible to generate enough revenue to pay rent.
Next, the creditor focused on the lease provision that a “lack of money” didn’t equate to a force majeure event. The Court nixed this argument, too. It found that the debtor tenant was not claiming a lack of funds as the proximate cause of its failure to pay rent. Instead, the EO was: it shut down all Illinois restaurants’ on-premises consumption of food and beverages for a two-week period.
For textual support, the Court applied the contract interpretation maxim that a more specific provision controls over a general one. While the lease did except a general lack of funds from the FM Clause’s reach, it also counted “governmental action” and “orders of government” as specific force majeure events. And since the EO plainly qualified as governmental action, the Court held the tenant could properly invoke the FM Clause to reduce its post-petition rent payments.
The creditor’s argument that the tenant could have applied for an SBA loan also fell flat. The Court noted that nothing in the lease, the FM Clause or any cited legal precedent required a defaulting tenant to try to borrow money to ameliorate any adverse governmental action that hampered a tenant’s ability to pay rent.
The Court didn’t excuse the tenant completely, though. The Court noted the EO expressly urged restaurants to offer food and beverage for off-premises via delivery and curbside pick-up. Because of this, the Court reduced the tenant’s rental duties in proportion to its diminished ability to generate funds to pay rent. In its response brief, the debtor estimated the EO rendered 75% of the tenant’s indoor space unusable. But it also allowed the remaining 25% of the space, including the kitchen, was still working.
Applying this simple math, the Court found the tenant was responsible for 25% of its normal monthly rent payment [including proportionate common area maintenance expenses] for the post-petition months of April – June 2020.
Take-aways:
This case likely augurs [or is at least representative of] a future glut of Covid-19 commercial lease default cases.
Where a general provision conflicts with a more specific one, the latter will control. Here, while the lease specifically excluded a tenant’s lack of money from the force majeure’s reach, the more specific, “order of government” and “governmental action or inaction” language controlled and served to partially excuse the tenant’s rent liabilities.
The Court’s analysis also tacitly recognized a tenant’s duty to mitigate damages. Since the tenant acknowledged that it still had a working kitchen and 25% of usable restaurant space, the Court proportionately reduced the tenant’s lease payments instead of completely excusing them.