The COVID-19 pandemic put force majeure clauses in commercial leases under unprecedented scrutiny. Thousands of tenants attempted to invoke them to avoid paying rent during government-mandated closures. Courts across the country largely rejected these arguments — not because force majeure clauses don't exist, but because most were carefully drafted to exclude exactly these situations. Understanding how force majeure clauses work in commercial leases is essential for any business signing a long-term lease. The clause that protects you when something goes wrong is only as good as its drafting. And if the landlord drafted it, the default terms are almost certainly weighted in their favour.
What is a Force Majeure Clause?
A force majeure clause excuses one or both parties from their contractual obligations when an extraordinary event beyond their control prevents performance. In a commercial lease, this typically means excusing a party from obligations like construction timelines, fitout deadlines, or delivery of the premises — not from the obligation to pay rent. Courts generally hold that a tenant's inability to operate a business is not the same as being 'prevented' from performing their rent obligation, and that economic hardship is not a force majeure event unless the contract explicitly says so.
Red flags to watch for
This language — common in landlord-drafted leases — means the clause will never excuse rent even if your business is shut down by government order. It needs to be negotiated out or balanced.
Post-COVID, any commercial lease that fails to enumerate pandemics, public health emergencies, and government access restrictions in the force majeure trigger list is leaving a significant gap.
One-sided force majeure clauses allow the landlord to delay delivering the premises without penalty, but don't allow you any relief for events that prevent you from operating.
Force majeure clauses typically require prompt written notice to invoke. If the clause is silent on timing, the landlord may argue you waived your rights by failing to notify quickly enough.
If a force majeure event lasts longer than the clause allows for, you could be stuck paying rent for a premises you can't access with no ability to exit the lease.
Your legal rights
Force majeure in US commercial leases is governed by contract law, not statute — there is no federal force majeure law. Courts will generally enforce the clause as written, applying the principle of contra proferentem (ambiguities construed against the drafter) where the language is unclear. Several jurisdictions also recognise the doctrines of frustration of purpose and impossibility as independent common-law defences, though these were largely unsuccessful during COVID-19 litigation. Tenants should also consider whether local emergency rent relief laws or government orders created independent defences during the pandemic period.
Questions to ask before you sign
- 1Does the force majeure clause apply to my rent obligations, or only to non-monetary obligations?
- 2Does the clause cover pandemics, government-mandated closures, or public health emergencies?
- 3How quickly must I notify you to invoke force majeure, and in what form?
- 4What happens if a force majeure event lasts more than 90 days — does either party get a termination right?
- 5Is the clause mutual, or does it only protect you as the landlord?
- 6How was force majeure handled in this building during the COVID-19 lockdowns?
Disclaimer: This guide is for educational purposes only and does not constitute legal advice. Contract law varies by jurisdiction and individual circumstances. Always consult a qualified legal professional before making decisions based on this information.