THE WORDS I CANNOT PRINT

             In 2010 Donahue Francis, as a residential tenant, signed a Lease for a Long Island apartment with Kings Park Manor using the House Choice “Section 8” Voucher Program. Things went well. Until they didn’t.

            In 2012 Francis’ next-door neighbor Raymond Endres began to torment Francis with racial harassment, abuse and threats. Here is a sample:

            February: Jews, effng Jews. Effng [n word].

            March 3: Damn effng Jews. Effng a-hole.

            March 10: [N word]. Effng [n word], close your god darn door, effng lazy, goddamn effng [n word].

            March 20: [N word].

            May 14: F you.

            May 15: Keep your door closed you effng [n word].

            May 22: I oughta kill you, you effng [n word].

            August 10: Effng [n word]. Black bastard.

            From the start, Francis contacted the police and Kings Park Manor to complain. Officers from the Suffolk County Police Hate Crimes Unit inspected, interviewed witnesses, and warned Endres to stop. One of the police officers also spoke to Kings Park.

            Kings Park Manor did nothing.

            Francis called the police again and filed another report in May 2012. This time, Francis sent Kings Park Manor a letter of May 23, 2012, notifying Kings Park of Endres’ racist conduct over the previous months.

            Kings Park did not respond.

            Endres’ conduct persisted. Finally the Suffolk County Police Department arrested Endres for aggravated harassment.

            On August 10, 2012, Francis sent Kings Park another letter. It informed Kings Park that Endres continued to direct racial slurs at Francis, and anti-Semitic, derogatory slurs against Jewish people. Francis also disclosed to Kings Park that Endres had been recently arrested for harassment.

            Kings Park ignored it.

            Endres’ attempt to photograph Francis’ apartment on September 2 was the last straw. Francis contacted the police and the next day sent Kings Park a third and final letter complaining about Endres’ racial harassment. On receipt of the letter, Kings Park advised its property manager not to get involved.

So, again, Kings Park did not reply.

            The situation was resolved only when Endres’ lease expired and he relocated in January 2013. In April 2013 Endres pleaded guilty to harassment, and the NY State Court entered an Order prohibiting him from contacting Francis.

            In June 2014 Francis sued Kings Park Manor and Endres, claiming that they had violated the federal Fair Housing Act and Civil Rights Act. Other claims related to violations of NY State laws.

            Raymond Endres never appeared or defended.

            The federal District Court made short work of Francis’ claims against Kings Park, dismissing what had not been voluntarily withdrawn. Francis appealed.

            The federal Circuit Court started by reviewing the Fair Housing Act, which makes it unlawful to discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status or national origin. The appellate Court determined that it would give the FHA a “generous construction,” once reminded that the purpose of the Act is to “eliminate all traces of discrimination within the housing field.”

            No surprises yet. The fundamental issue here, for those that follow FHA cases, is whether this Court would punish a landlord for choosing not to control tenant-on-tenant harassment. This claim is similar to tolerating or facilitating a hostile environment by purposeful inaction.

            Yes indeed, says this federal Circuit Court. Donahue Francis has a legitimate claim against his landlord Kings Park Manor, not for the landlord’s discrimination against Francis but instead based on the theory that Kings Park had notice of discrimination by one tenant disparaging and harassing another, and Kings Park failed to respond.

            Francis wins; Kings Park loses; Raymond Francis is cleared to prosecute his case. See Francis v. Kings Park Manor, Inc., US Court of Appeals; 2^nd Circuit; Docket No. 15-1823-cv; March 4, 2019: http://www.ca2.uscourts.gov/decisions/isysquery/d43720d6-f19f-477d-93bb-1fe2e0326eb7/1/doc/15-1823%20Complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/d43720d6-f19f-477d-93bb-1fe2e0326eb7/1/hilite/.

Note however that the opinion was withdrawn for unstated reasons shortly after it was released, so perhaps we’ll get more clarity soon: https://www.courthousenews.com/wp-content/uploads/2019/04/francis-ca2.pdf.

           

            Lessons Learned / Questions Asked (assuming the Opinion is not overhauled):

1.      Lesson: Here is what we know now that we didn’t know before. After the lease is signed, Fair Housing laws continue. Landlords must now police the actions of their tenants to be sure none are engaging in harassing and discriminating behavior against other tenants, applicants, residents or occupants.

2.      Lesson: This case will put a spotlight on fair housing claims insurance and its availability to multi-family owners and property managers. This decision will also spotlight fair housing education and seminars for those professionals who deal with these issues.

3.      Question: Does your Lease form allow you to forcibly move or evict a tenant who harasses others? If not then your request of the Judge to remove this tenant may fall on deaf ears. In that situation, you cannot comply with Fair Housing Act laws – as interpreted by this decision – because you do not have the legal right to abate this situation.

4.      Coda: Oy vey ist mir.

                                                                                    Stuart A. Lautin, Esq.*

* Board Certified, Commercial (1989) and Residential (1988) Real Estate Law,

Texas Board of Legal Specialization

Licensed in the States of Texas and New York

Higier Allen & Lautin, PC

2711 N. Haskell Avenue, Suite 2400

Dallas Texas 75204

P: 972.716.1888

E: slautin@higierallen.com

W: www.higierallen.com

THE IMPORTANCE OF TENANT ESTOPPELS

             In February 2012, Johnson Thermal Systems, a producer of industrial refrigeration equipment, entered into a Lease with Gilbert Family Trust for a one-year lease term. The Lease granted JTS an option to renew for two more one-year terms, but required JTS to give Gilbert at least 60 days prior written notice.

 

            In March 2013 JTS and Gilbert amended the Lease to provide that JTS was exercising its option to extend the Lease for the first of its additional one-year terms. That amendment extended the Lease until April 15, 2014.

 

            JTS began constructing a new facility in 2014. In the interim, agents for both JTS and Gilbert discussed plans for exercising the second (last) one-year term. During lease term extension negotiations, Gilbert presented to JTS possibilities of month-to-month, six-month, and one-year lease terms at different rates.

 

            On April 10, 2014, JTS told Gilbert via email that it “would like to do a 6 month lease with the option to go month-to-month for an additional 3-6 months.” So JTS and Gilbert signed an amendment extending the Lease until October 15, 2014. JTS was allowed further extensions in that document, which required appropriate advance notice.

 

            During the six-month extension term agents for JTS and Gilbert discussed extending the Lease past October 15. However, JTS never definitively answered whether it would extend or not. Instead, JTS consistently gave Gilbert possible vacation dates, each within the six-month extension term.

 

            October 15, 2014 passed without a written or oral agreement extending the Lease. JTS continued to occupy the building and pay rent. In November 2014 Gilbert entered into an agreement to sell the property to Caldwell Land and Cattle.

 

Gilbert sent JTS a written “Notice of Termination” which required JTS to surrender possession by January 31, 2015. In opposition to the Notice, JTS asserted that it had exercised the final six-month extension term, and was entitled to remain in occupancy through April 15, 2015.

 

            Gilbert and Caldwell closed the deal in December 2014. JTS refused to vacate, so Caldwell started eviction proceedings in January 2015.

 

            Although JTS ultimately vacated, it made no repairs to the property and left in place a leased electrical transformer which JTS had installed one year earlier.

 

            Since JTS had vacated, Caldwell amended its complaint by dropping the eviction claim and instead asserting damages and related matters.

 

            In August 2017 the district court held a trial, and ruled that JTS and Gilbert had created a month-to-month tenancy after October 15, 2014. The court concluded that JTS had breached the lease by removing the transformer without Caldwell’s permission, and failing to repair the leased premises.

 

            The district court held that Caldwell was entitled to recover $85,389 from JTS, plus $150,000 attorney’s fees. JTS appealed.

 

            Sparing you the analysis undertaken by the Supreme Court, the conclusion is that JTS did not exercise the six month extension. As a consequence, JTS was treated like a month-to-month or “at-will” tenant, subject to the holdover provisions of the Lease.

 

            This is not the reason why I selected this case for your reading enjoyment. There is another reason altogether.

 

            Caldwell knew the property was occupied before Caldwell closed the deal. And although unstated in the Appellate Opinion, it does not appear that Caldwell or Caldwell’s lender sought to confirm the position of JTS prior to closing in a Tenant Estoppel Certificate or equivalent.

 

            A Tenant Estoppel Certificate would have stated the position of JTS and provided that Caldwell (and perhaps, its lender) has been inducted by the Estoppel to close the purchase, and is detrimentally relying upon the factual accuracy of the statements contained within it. Typically Estoppel Certificates state the lease term, amount of rental owing, security deposit, finish-out allowances remaining unpaid, remaining renewal and extension options, that Landlord is or is not in default, and similar.

 

            Instead, it seems that Caldwell purchased the property subject to the superior possessory rights of JTS, without completely understanding (or at least knowing) the extent of those rights.

 

            Caldwell wins; JTS loses. See Caldwell Land And Cattle, LLC v. Johnson Thermal Systems, Inc.; Supreme Court of Idaho; Docket Number 46056; November 15, 2019: https://law.justia.com/cases/idaho/supreme-court-civil/2019/46056.html.  

 

            Lessons Learned / Questions Asked:

 

1.      Lesson: One might only wonder if this lawsuit could have been entirely avoided if Caldwell had insisted upon a Tenant Estoppel Certificate from JTS as a condition to closing. Such a Certificate presumably could have disclosed the leasing term issues. Caldwell could then have forced Gilbert to address the problem prior to closing, at Gilbert’s expense.

 

2.      Lesson: In fairness to Caldwell, perhaps such a Certificate was received – but the Opinion does not describe it. Or maybe Caldwell knowingly completed this purchase without such a Certificate based on an indemnity from Gilbert or closing escrow, funded by Gilbert. Maybe.

 

3.      Lesson: Yes Caldwell ultimately prevailed in the lawsuit, but how difficult will it be for Caldwell to collect this Judgment?

 

                                                                                                               Stuart A. Lautin, Esq.*

* Board Certified, Commercial (1989) and Residential (1988) Real Estate Law,

Texas Board of Legal Specialization 

Licensed in the States of Texas and New York 

Higier Allen & Lautin, PC

2711 N. Haskell Avenue, Suite 2400

Dallas Texas 75204

P: 972.716.1888

E: slautin@higierallen.com

W: www.higierallen.com

 

                   

 

LEASE RENEWAL NOTICES

            In my Texas world, lease renewal and extension notices must strictly adhere to all requirements specified in the lease. If the tenant is late, uses an incorrect address or method for delivery, has triggered an event of default, addresses an envelope incorrectly, or otherwise stumbles, then the notice can be effectively challenged.
 

            Guess the rules are different in Illinois.

            In July 2006 LI. Portfolio Holdings, LLC leased Chicago retail space to Gap, Inc. Portfolio was succeeded by 900 North Rush LLC; Gap, Inc. was acquired by Intermix and Intermix Holdco, Inc. succeeded the Gap as the tenant.

            The initial lease term ended April 30, 2017, but the lease contained a renewal option that the tenant could exercise to extend the term for five more years. 120 day advance notice was required.

            On November 29, 2016, an attorney in Gap’s real estate law department sent a letter to 900 North Rush, on Gap’s letterhead. The reference line provided that the purpose of the letter was an exercise of option notice pertaining to “Intermix #2357.” The letter stated that, pursuant to Article XXI of the lease, “Tenant hereby exercises its right to extend the term of the Lease.”

            The letter was signed by Matthew Irwin, on behalf of Old Navy, LLC. The Gap is the parent company of Intermix, Old Navy, and many other retail clothing stores.

            The Manager of 900 North Rush timely received the letter and knew that Intermix was attempting to exercise the renewal option. However, because the option was purportedly exercised in the name of Old Navy, he believed that the option was improperly exercised.

            The Manager advised Intermix that the letter was deficient since the Tenant did not exercise the option – instead, a stranger to the lease (Old Navy) attempted to do so.

            Predictably, Intermix did not vacate the premises when the lease term ended. So 900 North Rush served Intermix with a demand to vacate, then filed an eviction lawsuit.

            The trial court held that Irwin’s letter was an effective exercise of Intermix’s renewal option. 900 North Rush appealed.

            The question presented to the Court of Appeals is a narrow one – did Intermix satisfy the Lease requirement to exercise a renewal option? 900 North Rush contends that a letter sent by Old Navy cannot serve to properly extend the Lease. Intermix argues that Irwin and Old Navy acted as agents for Intermix.

            Really, it’s a question of strict compliance. The tenant (Intermix) was the beneficiary of the extension option. Absent a principal-agent relationship, neither Irwin nor Old Navy had the right to exercise the option on Intermix’s behalf.

            The Illinois Appellate Court, like most other courts, first determined that a commercial tenant must strictly comply with a renewal option exercise or it is forfeited. In fact, the Court used the word “fatal” to describe the failure to properly exercise an option.

            Further, the Court opined that neither oral notice nor the landlord’s actual knowledge of the tenant’s intent to renew is sufficient, if a lease requires a writing.

            Sounds bad for Intermix, right. Clearly, this is not going well for Old Navy’s continued presence on East Delaware Place in Chicago.

            But wait, says the Appellate Court. The letter stated that it is being sent regarding the Lease at issue and for the purpose of exercising the option. The letter properly identified the location, date of Lease, parties to the Lease, and that Intermix was the Tenant.

            The fact that Irwin’s signature is below the words “Old Navy, LLC” is hardly dispositive, says this Court. Old Navy was only referenced in Irwin’s signature block. The content of the letter, says the Court, speaks from the perspective of Intermix.

            So, somehow, someway, this Court concludes that Old Navy had the lawful ability to exercise a renewal option for Intermix. And that Landlord is stuck with this Tenant for five more years.

            Intermix wins and gets to stay; 900 North Rush loses. I hope this is further appealed.

See 900 North Rush LLC v. Intermix Holdco, Inc.; Appellate Court of Illinois, First District, First Division; Numbers 1-18-1914, 1-18-2030, 1-18-2684; August 26, 2019: https://law.justia.com/cases/illinois/court-of-appeals-first-appellate-district/2019/1-18-19141.html.  

 

            Lessons Learned / Questions Asked:

1.      Question: Does your Lease contain renewal / extension provisions? Of course it does. This case is an aberration. Option exercise requires strict compliance.

2.      Question: Conversely, are you a tenant who failed to exactly, precisely, follow the option exercise provisions? This decision gives you some wiggle room, at least in Illinois.

3.      Lesson Reminded: Renewal / extension options benefit only the tenant. From a landlord’s perspective, avoid them if you can. For a tenant: 100% insist on them, always.

                                                                                                                          Stuart A. Lautin, Esq.*

* Board Certified, Commercial (1989) and Residential (1988) Real Estate Law,

Texas Board of Legal Specialization 

Licensed in the States of Texas and New York 

Higier Allen & Lautin, PC

2711 N. Haskell Avenue, Suite 2400

Dallas Texas 75204

P: 972.716.1888

E: slautin@higierallen.com

W: www.higierallen.com

LET’S JUST AGREE ON THAT LATER, OK?

             The DFW International Airport Board operates the DFW International Airport. In 2012 the Board’s staff retained Vizant Technologies to analyze the airport’s payment-processing costs and provide expense reduction suggestions.

 

            The DFW Board and Vizant negotiated a Consulting Agreement for three years, with various incentives payable to Vizant based upon recommendations that effectively reduced payment-processing costs.

            The Contract limited Vizant’s compensation to $50,000. However, DFW agreed that the Board “will make a good faith effort to receive board authorization to increase the compensation” and if approved, the parties would amend the Contract accordingly.

            According to Vizant its services ultimately saved the airport ~ $82,000, and its fee under the agreed formula should have exceeded $300,000. Vizant submitted an invoice for $50,000 and requested that the Board approve an amendment authorizing the larger amount.

            The Board paid the $50,000 but denied the excess. So, Vizant sued the Board, alleging that the Board failed to make the promised good faith effort to authorize the increased compensation.

            And, appeals brought this case to the attention of the Texas Supreme Court, which – surprisingly – agreed to accept it.

            First, the high Court reviewed the exact language whereby the Board agreed to make a good faith effort to obtain its own authorization for the higher payments. Thinking that it might be more reasonable for the Board’s staff to make a good faith effort to obtain the Board’s approval, that promise is not enforceable against the Board and even if it were, the remedy could never be to require the Board to pay more than it authorized staff to negotiate.

            But back to the agreement. The essence is that the Board agreed to make a good faith effort to authorize a higher payment in the future. Note that the Board did not agree to make a higher payment; rather it agreed to make a good faith effort to accomplish that result.

            This, the high Court reminded us, is not the situation where parties agree to agree in the future. Rather this contract obligated the Board to make a good faith effort to agree. This may be a distinction without merit, as we get to the same place.

            The Court determined that the Board’s promise was similar to the equivalent of a promise to negotiate towards a future deal in good faith. And, an agreement regarding future negotiations is unenforceable. The addition of the good faith qualifier does not save the contract.

            The Court also felt compelled to add that Texas is in a minority position, as many more jurisdictions have recognized the enforceability of contracts obligating parties to negotiate. But even in this situation if the provision was enforceable, the proper remedy might be difficult to find. Because the Board would have breached an “efforts” agreement, as opposed to breach of an agreement obligating the Board to pay $330,000.

            Some courts, say the Supremes, have used reliance damages as a model (the amounts paid by plaintiff in reliance on its belief that the defendant was negotiating in good faith). Other have allowed expectancy damages (the amount the plaintiff expected to receive as a result of the anticipated contract).

            But no matter here. A Texas contract obligating parties to agree in the future is unenforceable, as is a Texas contract obligating a party to use its good faith efforts to agree in the future to amend an existing contract.

            Judgment is rendered dismissing all claims. DFW wins; Vizant loses.

See Dallas / Fort Worth International Airport Board v. Vizant Technologies, LLC Texas Supreme Court; No. 18-0059; May 17, 2019: https://law.justia.com/cases/texas/supreme-court/2019/18-0059.html.  

   

            Lessons Learned / Questions Asked:

1.      Question: Does your Contract provide for a future agreement to agree? These provisions are ineffective in Texas.

2.      Question: Does your Contract provide for a future agreement to use good faith efforts to cause future payment or similar? Sorry, not effective in Texas.

3.      Lesson: Don’t mess with Texas.

                                                                                     Stuart A. Lautin, Esq.*

* Board Certified, Commercial (1989) and Residential (1988) Real Estate Law,

Texas Board of Legal Specialization 

Licensed in the States of Texas and New York 

Higier Allen & Lautin, PC

2711 N. Haskell Avenue, Suite 2400

Dallas Texas 75204

P: 972.716.1888

E: slautin@higierallen.com

W: www.higierallen.com

BACK TO BELLEVUE

            I wrote about this case in January and February 2018. In December 2017 the Superior Court of Kings County, Washington, entered an Order requiring a vacant tenant (Whole Foods, owned by Amazon) to reopen its closed business and continue operations. The decision was promptly appealed.

 

Commercial real estate attorneys across the county have been patiently watching. Waiting. Anticipating.

            Now it’s decision time.

 

            As background and for those of you who don’t recall . . . Bellevue Square, LLC has 1.3 million square feet of retail space. In 2013 there were three anchors: Nordstrom (266,708 SF), Macy’s (218,371 SF), and JCPenney (200,000 SF).

            Penney’s notified Bellevue that Penney’s would vacate in 2014. Whole Foods was interested in the ground floor space, approximately 34,000 SF.

In 2015 Bellevue Square LLC entered into a 20 year lease with Whole Foods Market, Inc. Whole Foods opened the store in September 2016, and closed the site in October 2017.

Bellevue filed a lawsuit based on an operating covenant requiring Whole Foods to “conduct and carry on” its business of grocery sales “without interruption.” Bellevue’s experts testified that Whole Foods’ vacancy disrupted the stability of the shopping center, affected negotiations with potential and current tenants, reduced customer traffic, prevented Bellevue from recovering percentage rents, and adversely affected Bellevue’s reputation.

Whole Foods conceded that it vacated, but asserted that Bellevue’s appropriate remedy for the breach is damages. Not an injunction or temporary restraining order.

Surprising virtually every real estate attorney in the country, Bellevue prevailed at trial and obtained a preliminary injunction requiring Whole Foods to reopen and continue operating the retail store. Whole Foods appealed, and the Court of Appeals stopped the injunction pending full review.

The Appellate Court determined that injunctions are not warranted if there is a plain, complete, speedy, and adequate remedy at law. And whether or not Bellevue is entitled to an injunction is a function of the Lease and particularly, its remedy provisions.

The Court reviewed the operating covenant in the Lease and determined that Whole Foods was required to continue business operations for the first 10 years of the lease term of between 10 and 13 hours every day. The Court then focused on Bellevue’s contractual remedies in the event of Whole Foods’ default.

The Lease provides that if Whole Foods breaches the Lease by abandoning the site, Bellevue may either terminate the Lease or recover damages for Whole Food’s default. In the latter event, Bellevue has a contractual duty to mitigate damages.

The trial court concluded that these limitations did not prevent ordering Whole Foods to reopen within 14 days and continue business operations. The Court of Appeals disagreed, finding that damages are compensatory and there is no legal justification to force Whole Foods to reopen particularly when Bellevue is required to mitigate its losses.

Those are inconsistent remedies. The Lease gives Bellevue an adequate, complete, and speedy remedy for the harm caused by Whole Foods and Bellevue may continue to recover rent, damages, and other payments from Whole Foods. This case is not appropriate for an injunction compelling Whole Foods to remain open.

Whole Foods wins; Bellevue loses.

See Bellevue Square, LLC v. Whole Foods Market, Inc., Washington Court of Appeals; Division One; Case No. 77770-0-1; December 17, 2018: https://law.justia.com/cases/washington/court-of-appeals-division-i/2018/77770-0.html.  

            Lessons Learned / Questions Asked:

1.      Question: Does your Lease provide for operating covenants, enforceable by the remedy of specific performance? The provision might be ineffective, depending on how the other remedies provisions are worded.

2.      Lesson: Don’t mess with Amazon.

                                                                                                     Stuart A. Lautin, Esq.*

* Board Certified, Commercial (1989) and Residential (1988) Real Estate Law,

Texas Board of Legal Specialization 

Licensed in the States of Texas and New York

THE SUPREMES SPEAK. AGAIN.

             I have written about this before. It is rare that the Texas Supreme Court will review a case involving a commercial landlord – tenant dispute. Well it just happened. Again.

            Landlord Rohrmoos Venture executed a lease in 1996 with tenant UT Southwestern DVA Healthcare for a building in Dallas. I believe the building may be on Elmbrook Drive – very close to UTSW’s main campus facilities. The lease was modified and ratified in 2003. UTSW used the space for a dialysis clinic.

            At some point UTSW experienced water penetration in the building’s concrete foundation. UTSW installed ceramic floor tiles in an attempt to contain the moisture problem.

            In September 2007 Texas health inspectors evaluated the clinic and criticized UTSW because flooring had become loose and moisture could be seen under the tiles. UTSW notified Rohrmoos of the inspection results and the two parties exchanged communications over a period of several months. Neither party accepted responsibility.

            Multiple engineers and contractors were engaged, but the issue persisted to 2009 and then began to worsen as the building suffered significant water penetration.

            Because UTSW viewed the building as unsuitable for its intended commercial purpose, UTSW terminated the lease early, vacated, and relocated to Irving while still owing ~ $250k in unpaid rent. UTSW then sued Rohrmoos for breach of contract, breach of an implied warranty of suitability, and attorney’s fees.

            At trial, the case was submitted to a jury. The jury found that: (a) both UTSW and Rohrmoos had failed to comply with the lease, (b) Rohrmoos breached the lease first, and (c) Rohrmoos breached an implied warranty of suitability.

            The trial court, based on the jury’s verdict, held that UTSW properly terminated the lease and Rohrmoos owed UTSW over $1 million in attorney’s fees.

             Rohrmoos appealed to the Texas Court of Appeals.

 

            The Court of Appeals determined that UTSW had the right to terminate the lease based on Rohrmoos’ breach of an implied warranty of suitability. And, that UTSW was entitled to a judgment of $1+ million in attorney’s fees.

            Rohrmoos appealed to the Texas Supreme Court. And (surprise, surprise) the Supremes agreed to review the case.

            In a 56-page Opinion, the Supreme Court concluded that UTSW had the right to terminate the lease as a remedy for a material breach by the landlord. Since the jury found that Rohrmoos had materially breached the lease, then the relocation and termination actions of UTSW were justified.

            All of that was concluded in the first 15 pages. The remainder of the decision concerned procedural matters and a $1+ million attorney fee award.

            UTSW prevails on the right to terminate a lease and vacate following a landlord’s material breach of lease; Rohrmoos loses that point. However, the $1+ million attorney fee award was reversed and sent all the way back to Dallas County to present that singular issue to yet another trial jury.

See Rohrmoos Venture v. UTSW DVA Healthcare, LLP, Texas Supreme Court; Case No. 16-0006; April 26, 2019: https://law.justia.com/cases/texas/supreme-court/2019/16-0006.html.  

            Lessons Learned / Questions Asked:

 

1.      Texas attorneys, landlords, tenants, lenders, and brokers all had questions about the viability of allowing tenants to terminate a commercial lease and vacate, claiming the commercial premises are unsuitable for its intended business purpose. We’ve had this theory since 1988, but precious little has been written about it. Now we know the theory is correct.

2.      To Texas landlords: beware and quickly respond to the claim of commercial tenants that the premises are not suitable for its intended business purpose. To Texas tenants: if you have not committed a significant lease breach, this Rohrmoos case confirmed what we have believed since 1988 – you may have the right to relocate and terminate.

3.      To Texas litigation attorneys: your ability to receive a fee award has been severely compromised. You don’t need to read the first 15 pages, but you might want to focus hard on the remaining 41.

                                                                                     Stuart A. Lautin, Esq.*

* Board Certified, Commercial (1989) and Residential (1988) Real Estate Law,

Texas Board of Legal Specialization 

Licensed in the States of Texas and New York