Force majeure

The asymmetry

A typical clause excuses delays in performing obligations and then states that the tenant's obligation to pay rent is never excused. Since the landlord's obligations are overwhelmingly performance obligations and the tenant's are overwhelmingly payment obligations, the clause protects the landlord far more than the tenant. That is standard and largely unavoidable, but the scope is negotiable.

What tenants should ask for

• A cap on delay. Landlord delivery delays excused by force majeure should still trigger the tenant's outside date remedies after a stated period, commonly 60 to 120 days. Without a cap, an uncapped force majeure clause can suspend a delivery deadline indefinitely.
• Symmetry where it makes sense. Where the tenant has performance obligations, such as an obligation to open by a date or to complete its own work, force majeure should protect the tenant too.
• Exclusion of financial inability. Both directions. A party's lack of funds should never be a force majeure event.
• Notice. Require prompt written notice describing the event and the expected delay, so a claim cannot be made retroactively months later.

The list of events

Most forms list acts of God, war, terrorism, civil unrest, strikes, government restrictions, and shortages of labor or materials. Post 2020 forms commonly add epidemic, pandemic, and public health emergency, along with government orders issued in response. Whether pandemic related closure excuses rent is now usually answered explicitly rather than left to litigation, and it is answered against the tenant in most landlord forms. A tenant that wants rent relief in that scenario needs it written in, typically through a rent abatement provision tied to a governmental closure order rather than through force majeure.

In the redline

Because the clause is boilerplate, changes to it read as boilerplate. Two edits worth catching: the addition of "including without limitation any delay in obtaining permits or approvals," which covers a very common and very controllable source of landlord delay, and the deletion of an outside date cap elsewhere in the delivery article that the force majeure clause then feeds into.