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Force Majeure Clause Enforced due to COVID Executive Order

A Seminole County Court judge recently ruled that a gym that was forced to close due to the Governor’s prior executive order regarding certain business closures during the initial stages of the COVID pandemic was clearly within the meaning of the force majeure provision of the gym’s commercial lease.

In the case of Divita Fitness Corporation d/b/a Anytime Fitness vs. Prospere II Investment, LLC, Case No. 2021-CC-000726, the gym sued the landlord to enforce the force majeure provision of the gym’s commercial lease, seeking a ruling that during the period that the force majeure event was in effect, the gym’s duty to pay rent was suspended.

The Court found that the lease contained a “USE/EXCLUSIVITY” clause that restricted the activities within the premises to those of a gym, which was “in the nature of a restrictive covenant.”  The lease also contained a “FORCE MAJEURE” provision that provided, “Neither Landlord nor Tenant shall be required to perform any term, condition or covenant in this Lease so long as such performance is delayed or prevented by force majeure, which shall mean acts of God…restrictions by any governmental authority. . .and any other cause not reasonably within the control of Landlord or Tenant and by which the exercise of due diligence Landlord or Tenant is unable, wholly or in part, to prevent or overcome. Lack of money shall not be deemed force majeure.”

The Court acknowledged that the Governor’s Executive Order 20-71, issued on March 20, 2020, prohibited all gyms and fitness centers from operating within the State of Florida due to the spread of COVID, which remained in effect until May 18, 2020.  The Court explained that an Executive Order prohibiting certain activities constitutes “restriction by governmental authority,” as a matter of law. Accordingly, by the plain language of the lease, the Court ruled that no rent was due from the gym to the landlord for the time period that the Executive Order 20-71 was in effect, from March 21, 2020, through May 17, 2020.

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