Frustration of Purpose: How Two WWII-era Cases Provide Guidance Regarding Lease Enforcement During the COVID-19 Health Crisis

by Cameron M. Peyton, Mark E. Ellinghouse

Unlike the Great Recession in 2008, landlords and tenants responding to the negative economic impact of the COVID-19 health crisis appear to be focusing more on rent relief as opposed to strict interpretation and enforcement.  Both sides seem to acknowledge that this downturn is driven by external, uncontrollable influences, and therefore each side should cooperate to weather the storm. It is the approach we most strongly encourage our clients to take, as it strengthens the relationship between landlord and tenant and avoids unnecessary expenditures on costly lease enforcement.

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Reopening Commercial Buildings: Guidelines and Legal Duties

by Shawn M. Kent

Landlords and property managers have massive amounts of guidance materials available to them as they prepare to reopen their properties. These materials detail many different things a property owner can do.  In the face of this, the question being asked by many owners is: what are they actually required to do, what is their legal duty?  Unfortunately, the answer is both fact- and circumstance-specific, taking into account the property and its users, as well as federal,

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Opportunity Zone Funds and Investors Get Relief in Light of COVID-19

by Aman Badyal, Andrew D. McCarthy

On June 4, 2020, the Internal Revenue Service published Notice 2020-39 (Notice) which provides relief to qualified opportunity funds (QOFs) and their investors in light of the COVID-19 pandemic.  Here is a summary, and more details follow below:

  • Investors who otherwise would be required to reinvest capital gains into a QOF any time this year on or after April 1 now have until December 31, 2020 to reinvest such gains.

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Post Moratorium Evictions

by Louis A. Gonzalez, Jr.

As the first of the rent moratoriums are expiring, landlords throughout California are eager to file unlawful detainer actions to obtain possession of their properties from tenants who have failed to pay rent or comply with repayment obligations. While it is natural for landlords to want to immediately initiate unlawful-detainer proceedings, they should proceed with caution. Landlords who issued 3-day or 30-day notices to their tenants for failure to pay rent during the moratorium period would be wise not to rely on those notices as the basis of an unlawful detainer action.

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Paycheck Protection Program Flexibility Act of 2020

by Aman Badyal, Andrew D. McCarthy

On June 5, 2020, President Trump signed into law H.R. 7010 – the Paycheck Protection Program Flexibility Act of 2020 (“PPPFA”). The PPPFA makes significant borrower favorable amendments to the Paycheck Protection Program (“PPP”).

Background.

As our readers know, the PPP loan program was enacted pursuant to the CARES Act as a tool to help small businesses keep employees on their payroll. The draw of the program is the ability for borrowers to have the loans forgiven.

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Strategies for Granting Rent Relief in the Age of COVID-19

by Mark E. Ellinghouse

Over the past several months, the COVID-19 health crisis has affected everyday life by a magnitude that is hard to fathom. Routine tasks, such as going to the grocery store or walking the dog, suddenly necessitate precautions like face masks, social distancing, and excessive amounts of sanitizer. Unemployment is near record levels, businesses have shuttered, and most of us are confined to our homes to avoid further spreading the COVID-19 disease.

Yet while most of us have adjusted to the “new normal” and cities and counties begin to reopen,

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SBA Releases PPP Loan Forgiveness Application (UPDATED*)

by Aman Badyal

On Friday May 15, 2020, the Small Business Administration (“SBA”) released the application borrowers will use to request forgiveness of their Paycheck Protection Program (“PPP”) loans.  On Friday May 22, 2020, the SBA and Treasury jointly issued an Interim Final Rule clarifying some portions of the forgiveness application.  PPP borrowers have been awaiting additional guidance regarding the forgiveness portion of the program for well over a month.  While the application and interim final provides some additional guidance,

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Further SBA Guidance on Necessity Certification for PPP Loans

by Aman Badyal, Andrew D. McCarthy

Small Business Administration (SBA) guidance published on May 13, 2020 adds clarity to the “necessity” certification that borrowers were required to make when applying for Paycheck Protection Program (PPP) loans.  According to this guidance, borrowers that received PPP loans of less than $2 million will be deemed to have made the necessity certification in good faith.  As to borrowers with loans greater than $2 million, if the SBA notifies the borrower that the SBA has determined that the borrower lacked an adequate basis for the necessity certification,

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IRS Issues Clarification on Deductibility of Expenses Paid with Forgiven PPP Loans

by Aman Badyal

The Paycheck Protection Program (“PPP”) was established by the recently enacted CARES Act. PPP allows approved lenders to make loans to small businesses operating the United States. The federal government guarantees the repayment of PPP loans while providing borrowers with favorable repayment terms. The loans may be forgiven if the proceeds are expended primarily on employee payroll costs and if certain other employment-related standards are satisfied (we will discuss these requirements in further detail in a future alert following receipt of additional guidance from the Treasury Department).

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SBA Guidance on Borrower Certification for PPP Loans (Updated)

by Andrew D. McCarthy

If your business received a Paycheck Protection Program (PPP) loan, now may be a good time to look at the new guidance from the Small Business Administration (SBA) to see whether the business should consider returning the money if the business did not really “need” it.  If, after considering the guidance, the business determines it does indeed need the loan, the business should ensure it has documentation demonstrating such need.

Background

On April 24,

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