When is a lease NOT a lease? Right after a pandemic hits and shuts down all business for months. If a new bill makes it through the California legislature, commercial landlords and property owners across California may need to amend some leases very soon.
The state’s Senate Judiciary Committee advanced a bill on Friday that would allow small businesses — like cafes, restaurants and bars — to renegotiate and modify lease deals if they have been impacted by shelter-in-place orders and economic shutdowns. If an agreement isn’t reached after 30 days of negotiations, the tenant can break the lease with no penalty.
Landlord advocates have been mobilizing in opposition, arguing that the proposal is unconstitutional, and that it would “upend” leases around the state. Justin Thompson, a real estate partner with Nixon Peabody, told Commercial Observer that it was illuminating to see so many industry organizations come out “so vehemently opposed” in a short period of time. He heard from industry groups all week, and said the general consensus in the commercial real estate community is that the bill is “overly broad, overreaching, and it is a bit of a sledgehammer” when something less blunt would do.
“Everyone recognizes that restaurant tenants and smaller non-franchise retail tenants in particular really are in dire straits and in need of assistance,” Thompson said. “But I think the implications of SB 939 are really laying it at the feet of landlords, and putting them in the situation where, even if they have tenants that were going to make it through this, they might now rethink that and leave the landlord in the lurch.”
Senate Bill 939 was initially introduced as a statewide moratorium that would prohibit landlords from evicting businesses and nonprofits that can’t pay rent during the coronavirus emergency. But it was amended last week to also give smaller businesses the ability to trigger renegotiations if they have lost more than 40 percent of their revenue due to emergency government restrictions, and if they will be operating with stricter capacity limits due to continued social distancing mandates.
Matthew Hargrove, senior VP of government relations for the California Business Properties Association (CBPA), wrote a letter to the committee saying SB 939 “could cause a financial collapse.”
“This postponement of rents will cause … landlord’s financials to crumble and lead to lenders putting out cash calls to lower loan balance and foreclose when landlords cannot pay, and cripple landlords’ abilities to keep their properties open and maintained,” the letter read. Thompson added that the bill risks harming foundational landlord-tenant relationships throughout the state.
Many commercial landlords are already working with renters, waiving backrents, and restructuring leases. SB 939 will be heard in the Senate Appropriations Committee in June.
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