A pandemic. An earthquake. A government-ordered closure. Your lease's force majeure clause determines whether extraordinary events that prevent you from using your space give you any relief from rent obligations — and most residential and commercial force majeure clauses were not written with modern catastrophes in mind.
Force Majeure Is an 'Act of God' Defense — With Important Limitations
Force majeure (French for 'superior force') is a contract doctrine excusing a party from performance when extraordinary circumstances beyond their control make performance impossible or impracticable. In lease contexts, force majeure clauses list specific triggering events (hurricanes, earthquakes, fires, government actions, pandemics) and specify what relief applies when those events occur. The critical limitation most tenants don't realize: standard commercial lease force majeure clauses typically excuse the landlord from performance delays (building repairs, construction) but do not excuse the tenant from rent payment obligations. The 2020 pandemic exposed this asymmetry dramatically — tenants who couldn't operate due to government closure orders found that their force majeure clauses provided no rent relief.
The Difference Between Excuse and Relief in Force Majeure
Force majeure language distinguishes between two types of relief: excuse from performance (a party doesn't have to perform the obligation at all) and deferral of performance (the obligation is postponed until the event passes). For rent payment obligations, most commercial leases either exclude force majeure entirely (rent is always due regardless of events) or limit it to 'impossibility of performance' — a higher standard than mere impracticability. Pandemic-related government closures created impracticability (operating a restaurant for dine-in service was government-prohibited) but not impossibility (paying rent was still possible, just financially devastating). Courts in most states found this distinction did not excuse rent payments, leaving tenants with full rent obligations during closures.
What Events Are Typically Listed in Force Majeure Clauses
Standard force majeure trigger events include: war, insurrection, riots; earthquakes, floods, hurricanes, fires; acts of God; labor strikes affecting building systems; government-required evacuations; and sometimes explicitly pandemic or epidemic events (more common in post-2020 leases). What's often missing from pre-2020 force majeure provisions: government-ordered business closures or capacity restrictions; supply chain disruptions; economic conditions; financial inability to perform; and market changes making the lease economically unviable. Post-pandemic lease drafting increasingly includes pandemic-specific language, government closure provisions, and business interruption relief mechanisms. If you're signing a lease today, push for pandemic and government closure provisions explicitly.
Frustration of Purpose: The Legal Doctrine Force Majeure Doesn't Cover
Even when force majeure clauses don't explicitly cover a specific event, common law doctrines may provide alternative relief. Frustration of purpose applies when a supervening event — not foreseen by either party at contract formation — so fundamentally alters the purpose of the contract that it would be unjust to enforce. A restaurant lease whose entire purpose was operating a dine-in restaurant could argue frustration when government orders made dine-in operations illegal. Courts were skeptical of frustration arguments during COVID-19 (the pandemic was unprecedented, not truly unforeseeable given historical flu pandemics), but the doctrine remains available in appropriate circumstances and has succeeded in some jurisdictions.
Negotiating Better Force Majeure Protection
In new leases, push for expanded force majeure provisions that: explicitly list pandemics, government-ordered closures, and capacity restrictions as triggering events; provide rent abatement (not just deferral) for periods when government orders prohibit your specified use; include a tenant force majeure right for government closures lasting more than 60 consecutive days; and include a termination right if government closures or restrictions persist for more than 180 days. If the landlord won't agree to rent abatement, push at minimum for rent deferral with repayment over 12–24 months rather than a balloon payment at the end of the force majeure period.
Key Takeaways
- Standard commercial force majeure clauses typically do not excuse rent payments — even during government-ordered closures
- Post-2020 leases should explicitly list pandemics and government closure orders as force majeure events
- Push for rent abatement (not just deferral) for government-ordered closure periods exceeding 60 days
- Frustration of purpose is a legal doctrine alternative to force majeure — relevant when the lease's core purpose is impossible
- Include a termination right for extended force majeure periods (180+ days) as an exit mechanism of last resort
Frequently Asked Questions
- Did force majeure clauses help commercial tenants during COVID-19?
- Mostly no. Courts overwhelmingly held that force majeure clauses in commercial leases did not excuse rent obligations, even when businesses were government-ordered to close. The few exceptions were leases with specific language about government closure orders affecting the permitted use.
- What should a post-pandemic force majeure clause include?
- Include: explicit coverage of pandemics and public health emergencies; definition including government-mandated closure preventing permitted use; rent abatement (not just suspension) during force majeure periods; termination right after a defined period; and shared burden principles requiring landlord to cooperate in mitigation.
- Does force majeure excuse landlord obligations?
- Yes — force majeure typically excuses both parties' obligations, which can cut against tenants. If the landlord can't make repairs because of a supply chain disruption, force majeure may excuse that delay. Negotiate to ensure force majeure doesn't excuse landlord's core habitability and maintenance obligations.
- What is the difference between force majeure and 'acts of God'?
- Acts of God are a subset of force majeure events — specifically natural disasters and weather events. Modern force majeure clauses cover a much broader range, including government actions, pandemics, and infrastructure failures. An 'acts of God' only clause provides much narrower protection.
- Can a flood or hurricane trigger force majeure rent relief?
- Potentially yes, if the lease includes natural disasters in the force majeure definition and the event makes occupancy impossible. Coastal and flood-zone tenants should negotiate explicit rent abatement and termination rights for major storm events that render the premises uninhabitable.