Decide Guidelines Newbury Avenue Cafe’s Hire Excused Throughout Covid-19 Shutdown

One of many First Reported Courtroom Rulings Addressing Whether or not Enterprise Can Be Legally Excused From Paying Hire Whereas Topic to Authorities Covid-19 Shutdown

Because the Boston Globe reported this week, Suffolk Superior Courtroom Enterprise Litigation Session Decide Kenneth Salinger dominated {that a} Caffe Nero espresso store on Newbury Avenue was legally excused from paying lease for the almost three months final spring when indoor eating was halted below state orders to fight the unfold of COVID-19. The ruling might give leverage to struggling eating places coping with misplaced enterprise and unpaid lease payments. The 12-page courtroom ruling is embedded beneath.

UMNV 205-207 Newbury LLC (UrbanMeritage) v. Caffe Nero Americas, Inc., Suffolk Superior Courtroom CA 2084CV01493-BLS2

The dispute between Caffe Nero and UrbanMeritage, a distinguished Again Bay landlord that owns quite a lot of storefronts on Newbury Avenue, started not lengthy after Governor Charlie Baker ordered indoor eating closed on March 24, 2020 — a large blow for a European-style cafe whose enterprise mannequin hinges on folks lingering over lattes and croissants. Caffe Nero promptly requested for a break on its roughly $13,000-a-month lease, however UrbanMeritage stated no, and issued a default discover for nonpayment. By June, UrbanMeritage had launched eviction proceedings, in the end submitting a lawsuit looking for greater than $300,000 in again lease, damages, and authorized charges.

Frustration of Function Doctrine

Making use of the doctrine of “frustration of goal,” Decide Salinger dominated that lease fee is excused when efficiency turns into unimaginable by no fault of both celebration, corresponding to a pure catastrophe or pandemic. Since Caffe Nero’s lease solely allowed for restaurant use (and no different makes use of), and Gov. Baker’s Covid-19 shutdown order of indoor eating in the course of the early days of the pandemic prevented that use, Decide Salinger discovered that the doctrine of frustration of goal utilized on this case.

Drive Majeure Clause

Decide Salinger additionally side-stepped the events’ “pressure majeure” lease clause, which might have been learn to negate the frustration of goal protection utilized by Caffe Nero. A pressure majeure provision is a standard clause business leases which primarily frees each events from legal responsibility or obligation when a unprecedented occasion or circumstance past the management of the events, corresponding to a battle, strike, riot, crime, epidemic, sudden authorized modifications or an occasion described by the authorized time period Act of God, prevents one or each events from fulfilling their obligations below the contract. The pressure majeure provision within the Caffe Nero lease, nevertheless, particularly said that the fee of lease as a result of monetary lack of ability can’t be a cause to invoke the clause. In maybe questionable reasoning, Decide Salinger dominated that “the pressure majeure provision addresses the chance that efficiency could change into unimaginable however doesn’t deal with the distinct danger that the efficiency might nonetheless be doable even whereas [the] major goal of the Lease is pissed off by occasions not within the events’ management.”


I’ve a number of Covid-19 associated lawsuits pending the place companies and eating places couldn’t pay their lease in the course of the pandemic, and I’ve pled the identical protection as Caffe Nero did on this case. (I don’t but have a proper ruling in my circumstances). I believe it’s inevitable that we are going to see extra of the identical rulings by judges who’re sympathetic to companies who have been shut down utterly as a result of Gov. Baker’s orders. Actually, this ruling will trigger landlords to reevaluate whether or not they may be capable to acquire all unpaid lease from a Covid-impacted enterprise. After all, the standard issues may even apply — monetary means to pay, belongings, timing of funds, and so forth. We are going to see….as at all times, if you’re coping with a business lease dispute or know somebody who’s, be at liberty to contact me at [email protected].

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