Impossibility, Impracticability, Frustration of Purpose, and Force Majeure

Commercial landlords and tenants should understand the evolving case law related to available defenses where the tenant is unable to pay rent. Many lessons were learned during the pandemic, e.g., effectively using contractual force majeure clauses or, alternatively, common law defenses to seek relief; and case law has evolved accordingly.

 

Often-used common law defenses include impossibility of performance, commercial impracticability, and frustration of purpose. Counsel for commercial landlords and tenants should know how courts are ruling on contractual and common law defenses to prepare the best case moving forward. Defense counsel must also understand the state specifics related to common law defenses such as what qualifies as an impossibility and when and how a force majeure clause may override the availability of this common law defense.

 

Our panel will guide landlord and tenant counsel on contractual and common law defenses in breach of lease cases due to failure to pay rent. The panel will address recent case law regarding how courts have analyzed claims of frustration of purpose, impossibility, and other common law defenses.

---

With more than 25 years of commercial real estate experience—ranging from high profile litigation to general counsel positions and business roles at a major national association bank—MaryBeth Heydt represents banks, private lenders, developers, investors, and owners in a wide variety of commercial real estate transactions.
 
MaryBeth has focused her real estate practice on transactions since 1999 and currently devotes a significant portion of her time to representing banks in commercial real estate finance and workout transactions. She also represents developers, investors, owners, landlords, and tenants in purchase, sale, and leasing transactions in the commercial and corporate real estate sectors. MaryBeth has deep and broad experience with multifamily, industrial, retail, office, hospitality, gas station, convenience store, and quick service restaurant product types. She also advises clients on sale/leaseback and stalking horse transactions and has represented public entities in matters related to commercial real estate, public finance, and solar battery projects.
 
With a lifelong fascination with cities and real estate, MaryBeth developed an interest in urban planning in college and went on to earn a graduate Master of Planning degree with a major in public and private real estate development at one of the top planning schools in the country. She has since devoted her career to real estate and real estate law, including nine years at one of the largest banks in the U.S. as an internal commercial real estate workout and lending advisor. Her time there makes her a very effective advocate for banking clients, by providing her with an inside view of banking mechanics, policies, and strategies. In addition, MaryBeth served for 10 years as in-house legal counsel to commercial real estate investors and developers with assets across the country. Prior to starting her transactional practice, she practiced as a real estate litigator—an experience that gives her a more well-rounded perspective on contracts and a focus on potential pressure points related to potential litigation.
 
MaryBeth is known for her legal acumen and client loyalty. Clients appreciate that her in-house and business experience give her a combination of legal prowess and finely-tuned business skills to provide practicality while balancing risk.
 
 
Jeremy Y. Weltman is a shareholder and a member of the firm's Litigation Department. Jeremy frequently works with the firm’s Commercial Real Estate, Corporate Divorce / Business & Shareholder Disputes, Franchise Law, Construction Law, and Hospitality Practice Groups as part of his wide-reaching litigation practice focuses on finding successful resolutions to his clients' legal issues. Jeremy's hands-on commercial litigation experience includes handling all sorts of complex commercial and business litigation, employment litigation, Wage Act litigation, probate litigation, real estate disputes, construction matters, civil rights litigation – including ADA accessibility, accommodation issues, and high impact class action work – municipal disputes, appellate advocacy, and other tort-based litigation matters.
 
With a no-nonsense, direct approach, Jeremy is a practical, results-oriented attorney who prides himself on always thinking two-steps ahead of his clients' adversaries. In so doing, Jeremy has adeptly litigated and negotiated disputes for a wide range of clients including Fortune 500 corporations, mid-sized and small businesses which span across industries, including a variety of hospitality businesses, professional services offices, property owners and developers, commercial tenants and landlords, condo associations, contractors, and disenfranchised individuals. Clients take comfort in knowing that Jeremy has shown no fear in taking a “tough case” through trial. To this end, Jeremy has successfully tried numerous cases in Massachusetts state and Federal District courts, briefed and argued matters in the Massachusetts Appeals Court and First Circuit Court of Federal Appeals, and has also represented clients in alternative forms of dispute resolution, such as arbitration and mediation, with favorable results.
 
Notably, Jeremy has also earned a strong reputation for protecting the civil rights of the disabled and victims of discrimination. He aggressively pursues the rights of the disenfranchised, both on an individual and class-wide basis, in civil rights infringement cases brought against government institutions and the private sector in federal and state courts.
 
 
Denyse Jones takes pride in using her legal skills to advance the revival and growth of neighborhoods. She focuses her practice on business litigation for property owners, developers, political subdivisions, title insurers, taxpayers, and commercial lenders and lessors. She counsels clients on land use matters, litigating on behalf of projects in danger of losing momentum midstream. She also advises clients on conditional use permits, development disputes, title claims, rent disputes, creditors’ rights litigation and premises liability.
 
In addition, Denyse represents plaintiffs and defendants in commercial litigation matters, including complex breach of contract, lender liability, fraud and product liability. Denyse is adept at all phases of litigation and has served as lead counsel in court and arbitration forums.