Clarifying the Force Majeure Clause in a Commercial Lease

When commercial landlords and tenants negotiate commercial lease agreements, the normal focus of their efforts is the essential conditions of the tenancy ' rent amount, lease term, option periods, and the like. Often overlooked, how-ever, are those provisions generally considered 'standard boilerplate.' Force majeure clauses, in particular, are frequently viewed as miscellaneous paragraphs not worthy of lengthy consideration or discussion.

Unfortunately, the pitfalls of a failure to carefully negotiate the force majeure provision of a commercial lease are often realized only when a true catastrophic event occurs. In such situations, the tenant may be least able to withstand any additional hardship and needs the protection that a well-drafted force majeure provision can afford. Commercial real estate owners who suffered through the terrorist attacks of 9/11 and hurricanes Katrina and Rita learned all too well that the force majeure clauses of their leases may be the only means of ensuring invaluable protections if a catastrophic event does occur. (See, 'Post 9/11 Insurance Lessons Learned from the Ensuing Case Law,' Commercial Leasing Law & Strategy, May 2006).