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Sometimes Hell Does Freeze Over
The recent decision in Reliastar Life Insurance Co. of New York v. Home Depot U.S.A., Inc., 570 F.3d 513 (2nd Cir. 2009), illustrates once again the limits of a purchaser's or lender's ability to rely on an estoppel certificate, especially when a tenant is entitled to claim constructive eviction. Moreover, the court determined that constructive eviction would trump a “hell or high water” commitment to pay rent.
The Case
In this case, Home Depot, as tenant, entered into a ground lease (the “Lease”) with G&S Investors/Willow Park L.P. (“G&S”), as landlord, for premises in Farmingdale, NY. Under the terms of the lease, G&S was obligated to provide a “building pad,” while Home Depot was responsible for building a home improvement center on the site. An earthen building pad was provided by G&S, on which Home Depot constructed a store.
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