17
was based on a review of cases from several jurisdictions, including our own decision in
Critzos, supra. The Massachusetts Appeals Court observed:
In reaching that result [that nonpayment of commercial rent
due to COVID-19-related closures was not excused], courts
have looked to the duration of the closure, the length of the
lease, how far into the lease term the closure occurred, and
whether the tenant could have reopened its business once the
COVID-19 restrictions were lifted. See 9795 Perry Highway
Mgt., LLC v. Bernard, 273 A.3d 1098, 1106-1107 (Pa. Super.
2022) (no substantial frustration where closure was “relatively
short-term,” occurred more than two years into lease, and
tenants “could have reopened, albeit at a reduced capacity,” in
June 2020 had they not vacated). Also relevant is whether the
tenant remained in possession of the premises during the
closure period, see SVAP III Poway Crossings, LLC [v. Fitness
Int’l, LLC, 87 Cal. App. 5th 882, 891-92, 303, Cal. Rptr. 3d
863 (2023)]; Fitness Int’l, LLC v. National Retail Props., LP,
25 Wash. App. 2d 606, 524 P.3d 1057, 1065 (2023), and
whether the tenant could have used the premises for business
uses not barred by the shutdown orders, see AGW Sono
Partners, LLC v. Downtown Soho, LLC, 343 Conn. 309, 336,
273 A.3d 186 (2022) (lease terms, which allowed takeout and
outdoor dining, did not “render the lease agreement valueless
in light of the executive orders” barring indoor dining);
Critzos, supra at 699, 287 A.3d 1281 (similar); Fitness Int’l,
LLC, supra at 1064 (“In leasing, the frustration defense is
unavailable if a lease allows the tenant to put the premises to
another use”).
Inland Com. Real Est. Servs., supra, 213 N.E.3d at 608.
The Massachusetts Appeals Court held in favor of the commercial landlord and
against the commercial tenant, reasoning that the tenant “has not shown that the temporary
closure caused by the pandemic substantially frustrated the principal purpose of the lease.”
Id. The court emphasized the fact that the tenant “was forced to close its in-person
operations for three months, a relatively short time compared to the overall lease term,