Notwithstanding What We Write Today, Little Will Change

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“Notwithstanding,” is the draftsperson’s blanket cure to gaps or deficiencies in a document. It is an efficient, fast way to deal with an exception to a generality. As such, sentences beginning with this magic word are useful. They enable us to employ overbroad clauses because “notwithstanding” pulls our language back for the exceptions we have thought about. In other words, carefully written, they achieve the desired purpose.

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The ubiquitousness of the “notwithstanding” sentence, however, has a downside – its presence is easily forgiven. Another issue is how we employ this device. Do we write: “Notwithstanding anything to the contrary in the paragraph” or is it: “Notwithstanding anything to the contrary in this document”? Experienced or thoughtful readers know where we are going here. The more limited this caveat’s coverage, the safer it is to use. We only need to focus on a single paragraph or section in a document if our “notwithstanding” carve-out is limited to those words. But, when we encounter the broader statement, that the carve-out affects an entire document, we expose ourselves and others to greater danger. Have we reviewed every other word in the document to see if that word will be modified by our “notwithstanding” language? Ruminations will go out on a limb and venture: “No.” [Read more…]

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Apocalypse Now For Shopping Malls?

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We had a posting teed up for this week, ready to click the “publish button” today. Then we read an on-line article last night, one about the most visible retail real estate we have – shopping malls. So, for the first time in nearly 500 https://markmadsen.com/2022/11/17/izhythad25h Ruminations blog postings, we are scrapping (actually delaying) our planned posting, one focused on the danger of just plopping in new text at the last minute without reading all of the “notwithstanding” provisions already in that document. Basically, we interrupt your regularly scheduled blog posting to bring you this important message, one written today.

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Buy Xanax Vancouver The article appears in today’s New York Times under the headline: “With Department Stores Disappearing, Malls Could Be Next.” In another first for Buy Valium 1000 Ruminations, click HERE for a link to the article. We’ve never before linked to another publication. Though this is a newspaper article written from the transitory point of view of one author, she spoke with the largest operators in the United States. We don’t want to substitute our summary for the actual article. Two of the printed quotations should be enough to give our readers the “flavor.” [Read more…]

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More Thoughts About Force Majeure Provisions

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Buy Valium Next Day Delivery Last week, we wrote about a court decision interpreting a lease’s poorly written force majeure clause. If you missed it, click: HERE to see it. Following that blog’s posting, we engaged in some “off-line” discussions with old friends about the scope of force majeure provisions. Basically, our back-and-forths concerned their scope: “Should they be broad or narrow?” Today’s posting is an outgrowth of those discussions.

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https://kevinreillycollection.com/9wm1m2k9 Our position last week was that these provisions are “catch-alls,” i.e., they usually cover situations beyond the control of the parties. These clauses usually begin with: “If A, B, C, …, Z,” examples being labor strikes, meteorite crashes, etc. Then the clauses end with: “or other events beyond the reasonable control of a party.” The keyword is “other.” That tells us that A, B, C, and so forth are https://militaryanalizer.com/qhbm9es94tv examples of things beyond the reasonable control of a party. They (A, B, C, etc.) don’t have to be listed. That is if people would agree that they are such. [Read more…]

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Is A Poorly Written Force Majeure Clause Worth The Ink?

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We’ve all seen, or perhaps been assaulted by, a surfeit of articles about force majeure clauses and how all of our agreements should include one. Other pundits have gotten way ahead of this one by explaining how we will have a better world if the advice to include such clauses would be taken by all. They’ve noted that very few agreements with a force majeure provision have covered the kind of closures we have experienced and are still experiencing. But, what we’ve not seen is much understanding that there is nothing special about a “force majeure” clause: it is no more than another risk-shifting device. What differentiates these provisions from co-tenancy or fire damage provisions is that force majeure clauses don’t know in advance how a particular risk will manifest itself. Even though some speak of “labor disputes,” “acts of G-d,” “public enemies,” etc., they invariably end with: “or other events beyond the control of a party” or some such. Without getting into the rules of contract interpretation, we’ll simply note that this teaches that these clauses are intended to relieve one party or the other of an obligation if something beyond the control of the obligated party prevents performance. [Read more…]

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“And, If Not” – The Question Left Unasked: Crafting A Lease Requires Thoughtfulness

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Order Diazepam 20 Mg The court opinion we wrote about last week continues to bother us. It wasn’t only about the court decision’s primary question of whether an “election,” once made, can be revoked. There is a second aspect that bothers us, one that we will get to about 300 words from now. First, we’ll summarize what bothered us about how the lease didn’t “do the right thing,” “didn’t keep the question out of a court.” And, if the parties went to court, the lease didn’t give the court a rule or even guidance.

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As to whether a notice, once given, can be revoked, we know that the parties crafting an agreement should cover that in their agreement. We also know that if the non-electing party reasonably incurs damages when relying on such an election notice, it should be made whole. If they don’t, then what should the rule be? Last week, we saw a court look at a lease that was silent on the question as to whether a landlord that sent a 12-month notice requiring a tenant to temporarily vacate its premises could change its mind two months before the required move-out date. It ruled that the election made by the landlord requiring such a move-out could not be rescinded. What the court failed to do was to adequately explain why it ruled that way. [Read more…]

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Exercising An Option – Can You Change Your Mind?

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We agree with most judicial decisions, though there are a very few we think are misguided (read that as “wrong”). But, it isn’t very often at all when we’re not sure what we think. Today, we’ll present one of those, a “slip opinion” about whether a landlord could “withdraw” a notice when the lease didn’t say so – either way.

https://markmadsen.com/2022/11/17/4t280wu The lease included a reasonably comprehensive set of provisions designed to allow a landlord to redevelop a multi-tenanted building, one with high-end retailers (and possibly others). The redevelopment, if implemented, would take up to three years before the building could be re-tenanted. The building had to be empty during the redevelopment.

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Basically, the lease gave the landlord the right to “suspend” it for up to three years. During the “suspension,” it would be as if there was no lease. When the redevelopment was completed, the lease would spring back into effect, essentially as if time had stopped while the redevelopment was taking place. [Read more…]

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No One Is At Fault: It’s Time To Rethink Our Leases And Loan Documents

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A few weeks ago when COVID-19 kidnapped our blog postings, we wrote about recognizing the differences between individual catastrophes and community catastrophes. As further evidence that https://thebirthhour.com/m02teyhmbor Ruminations has little if any influence on our industry, it seems to us that we stand almost alone in the way we are analyzing the current situation. While newspapers, other media, law firms, industry gurus, and general analysis sources are predicting the future from a global perspective – i.e., what will the “new normal” look like; will this coronavirus rear its head again, over and over; will it morph and be with us for a long time to come – the industry blog postings and law firm memorandums we are reading (by the hundreds) seem to focus on weaponization. Yes, how can one of the three: landlords, lenders, and tenants, defend or protect themselves against the others?

Cheap Generic Valium Articles about “force majeure” are an example. Those that look backward analyze how clauses written without any thought of a pandemic can be retroactively reinterpreted to provide rent relief. Those that look forward seem to be encouraging that tenants (in their leases) and landlords (in their loans) insist on a provision giving relief either for a pandemic or, in essence, for any situation not anticipated at the time the binding documents are executed. We’ve seen “advice” from respected sources suggesting that, in situations such as what we are all facing today, payment modifications or workouts be treated just like “we always did,” beginning with a review of the payor’s financial statements, business plans, financeability, etc. [Read more…]

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Rights Without Remedies: Moratoriums And Real Estate

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If blog postings, law firm memorandums, newspaper articles, televised pundits, and the like were effective medications for COVID-19 infections, this crisis would be over. Without even asking readers, we know that all of you are inundated with reliable [and less than reliable] information and guidance about this virus and how to deal with it. Unfortunately, more and more, it seems like we’re hearing Arthur “Guitar Boogie” Smith and Don Reno performing “Feudin’ Banjos” on their seminal 1955 recording. We don’t play the banjo. Therefore, we won’t be joining the COVID-19 legal advice band today.

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https://kevinreillycollection.com/s6epx5p One thing, however, bothers us more than the many others. We’ve seen a lot of words speculating on what “laws” were needed. Some opinions have been sage. Many have been uninformed. What bothers us is that much of what we are reading ignores or blurs the difference between “rights” and “remedies.” Almost all lawyers know the following; many of our other readers may not. One way to explain what is going on is to use an example that comes right out of our current news. An increasing number of jurisdictions are legislating (or administratively imposing) rent relief for (usually only residential) tenants. [Read more…]

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