Force Majeure After COVID: What We Got Wrong, What We Fixed, and What's Still Broken

Before 2020, most commercial lease force majeure clauses looked like this:

"Neither party shall be liable for delays in performance caused by acts of God, fire, flood, earthquake, war, terrorism, strikes, or other causes beyond the reasonable control of such party."

Simple. Sounded total. "Other causes beyond reasonable control" felt like a catch-all. It was one of many provisions where ambiguous language creates expensive consequences.

Then March 2020 happened.

Was COVID a Force Majeure Event?

Courts split. Some found that pandemic/government closure fell within "other causes beyond reasonable control." Others found that the specific enumerated events (fire, flood, war) defined the scope, and pandemic wasn't analogous. The outcome often depended on state-specific legal requirements.

The problem: Ambiguity created litigation. Outcomes varied by jurisdiction and judge.

Did Force Majeure Excuse Rent?

Most force majeure clauses addressed performance delays, not payment obligations. Landlords argued rent was always due. Tenants argued closure made payment impossible.

The problem: The clause didn't contemplate the situation where the tenant couldn't use the premises at all.

What Counts as "Government Order"?

Mandatory closure? Capacity limitations? Advisory recommendations? Travel restrictions affecting customers?

The problem: Each government response created a new interpretation question.

Leases signed during the pandemic often went to the other extreme:

"Force Majeure Event shall mean pandemic, epidemic, disease outbreak, quarantine, public health emergency, government-mandated closure, government-ordered capacity limitation, government restriction on business operations, government travel restrictions, government stay-at-home orders, government shelter-in-place orders, supply chain disruption caused by pandemic, labor shortage caused by pandemic, customer reluctance to visit premises due to pandemic concerns..."

The enumeration went on for paragraphs.

The problem: Specificity creates new gaps. What about the next crisis that doesn't match the 2020 experience?

Clear Trigger Definition

Not endless enumeration, but principled categorization, one of several emerging provisions reshaping commercial leases:

"Force Majeure Event means (a) natural disasters, (b) armed conflict or terrorism, (c) government orders restricting use or access to the Premises, (d) epidemic or pandemic declared by WHO or CDC, or (e) other events beyond the reasonable control of the affected party that could not have been reasonably anticipated or prevented."

Specific Consequences

Different events, different consequences:

Delay in Performance (construction, repair obligations):

"Deadlines shall be extended day-for-day for the duration of the Force Majeure Event."

Rent During Closure:

"If government order prohibits Tenant's use of the Premises for its permitted use, Base Rent shall be abated during such closure period. Operating expenses and other charges shall continue."

Or alternatively:

"If government order prohibits Tenant's use, Base Rent shall be deferred (not abated) and payable in equal installments over 12 months following termination of the Force Majeure Event."

Notice Requirements

"The affected party shall notify the other party within [X] days of the Force Majeure Event and shall provide reasonable documentation of the event and its impact on performance."

Without notice requirements, parties claim force majeure retroactively to excuse non-performance they chose not to cure.

Mitigation Obligations

"The affected party shall use commercially reasonable efforts to mitigate the impact of the Force Majeure Event and to resume performance as soon as practicable."

Prevents open-ended excuse for partial impacts.

Duration Limits

"If the Force Majeure Event continues for more than [180] days, either party may terminate this Lease upon written notice."

At some point, the deal no longer makes sense for one or both parties.

The critical distinction most clauses still get wrong:

Abatement: Rent is forgiven. Tenant never owes it.

Deferral: Rent is postponed. Tenant owes it later, spread over time.

Most tenants want abatement. Most landlords prefer deferral. The clause should specify which applies, and under what circumstances.

Insurance Coordination

Force majeure clauses rarely coordinate with insurance coverage. Business interruption insurance, rent loss insurance, and force majeure provisions may overlap, conflict, or leave gaps.

Multi-Tenant Considerations

If one tenant triggers force majeure (construction delay affecting common areas), what about other tenants? Most clauses don't address cascading effects.

Supply Chain Force Majeure

Tenant can't operate because suppliers can't deliver. Is that tenant's force majeure, or just business risk?

Force majeure isn't about predicting the next crisis. It's about creating a framework that allocates risk clearly when unpredictable events occur. The best clauses are principled, not encyclopedic, and they're part of a broader evolution that includes how the office lease is being rewritten for a post-pandemic world.

This is also the kind of conditional logic that a structured drafting system can encode: different force majeure language based on property type, jurisdiction, and deal structure, applied consistently across your portfolio without relying on attorney memory.