Rentals and Evictions in the Pandemic Era

When our nation got shut down, lots of folks lost their jobs. And as a result, many were unable to pay their rent. A number of my friends and associates are landlords or property managers, and they were all lamenting the situation. Some states, like Arizona, were hit harder, because the governor ordered a moratorium on evictions. Later, the CDC added their own. Evictions became more interesting, shall we say, but still possible. This is a tale of one of my recent experiences in that area.

Most of my rentals are rented to tenants who need housing assistance. I did this on purpose, after watching other friends have payment issues with their rentals. When you decide to lease your home to a Section 8 qualified tenant, the State pays most, if not all, of their rent. And if they are paying a portion of their rent, and then they lose their job, the State will usually step up and pay all of it.

Because of the standards used by the various agencies, a rental to a typical tenant who is not taking advantage of a Section 8 program will often be for a higher monthly rent than housing assistance can authorize. So landlords do take a hit on the rental income, but in my experience it isn’t much. And I personally prefer to rent to Section 8 qualified tenants, because they need the help, and I think it is a good thing to do.

But this tale is about a tenant who was not using housing assistance, and how they took advantage of the landlord.

Typically, rentals end in a few ways. The tenant can give notice to terminate at the end of the lease period, or the landlord can give notice. Or, you might drive by your property one day and find that the power is off, the doors are open, and all the furniture is out on the lawn. This is called abandonment, and we will talk about it a bit more a little later. Other ways the lease can end involve the tenant not making payments, or by them violating the lease terms. Usually in these last two cases, the tenant really wants to stay, and they will pull out the stops to avoid eviction.

This particular tenant had been a decent one for many years, but recently due to some familial circumstances, the responsible party in the household changed. When it did, the rent started being late, when it had previously never been late. On the second occasion that it was late (or was it the 3rd?) I stopped by to see what was up, as I generally have good relations with my tenants.

And this time, I noted a few things: There was a car in the garage which was not operable, and actually had no engine (not allowed in the lease). And there was a car in the driveway, which seemed to never move. And there were holes in the walls from fists or slamming doors, the bedroom closet doors were missing, and the bedroom doors had holes in them.

On top of this, the house situation could best be described as squalor, and there were young children in the home. I saw roaches and other insects, and the tenant complained about scorpions. There was no free counter space, there were heaps of dirty dishes and random items everywhere. So it became clear that they were destroying the property, and an eviction was likely.

Per the ALTA, I prepared a 10 day notice citing some, but not all, of the issues that were visible, and sent the notice via certified mail. I timed it so that my 10 day inspection would occur on or just before the last day of the month, so that I could provide a month’s termination notice if they had actually fixed everything. But of course, at the 10 day inspection, they had not fixed much. Still the car in the garage, still the holes in the drywall (although they had covered some with large round disks made to keep doorknobs from denting the wall; I wonder what happened to all the spring door stops I had on every door?) And of course, the squalor was worse. I was tempted to call child protective services, but I figured the eviction would result in a better (or at least temporarily cleaner) place for them.

When we got the court date for the hearing, it was done virtually by phone, and of course the tenants claimed they had made all the changes I required in the 10 day notice. So the judge scheduled a trial a few days later, and I immediately drove to the property to take more photos to show what shape the property was in, at least from the outside. It was easy to see many things that were not corrected — still.

And of course at the trial, the tenant insisted that everything was fixed, even while looking at the photos of the same specific complaints that were not addressed, even after the hearing. The trial was also virtual, and everyone appeared by phone.

And of course, the judge ruled in my favor. The interesting part of the hearing and trial, for me, was listening to the other cases, and how the judge handled them. Because of the Governor’s order, and the more recent CDC order about the pandemic and evictions, the judge worked hard to make sure the tenants knew their rights and had the opportunity to exercise them. This is a problem for landlords, and I hope the behavior is limited to few judges. It is a little like getting a speeding ticket, going to court, and then the judge tells you that if you bring a get out of jail free card with you when you come back, she will let you off. Yep, that really happened. I know which judge to vote against now!

So once the eviction is ordered, the judge gives the landlord a writ of restitution. But because tenants have appeal rights, the writ does not actually issue until 5 days later, at which point you can hire the constable to forcibly remove the tenant from the property. This whole process is lengthy.

Let me lay it out for you: Day 1, send the 10 day lease violation notice via certified mail. Day 6, the 10 day clock starts (5 days for certified mail to be deemed service.) Day 17, conduct the inspection to see if the items have been corrected. Day 17 file papers with the court for the eviction. Day 20 (it varies depending on the court schedule), eviction hearing. If they no-show or plead guilty, you can get the writ then. If they plead not guilty, then a trial is scheduled. Day 22, trial (might be sooner or later depending on the court schedule and when tenants say they can appear). Day 28, writ issues. Day 29, you can hire the constable. Day 30-31, the constable schedules the eviction. Day 32+, the constable performs the eviction and control of the property is returned to the landlord.

When the constable shows up at the door, the tenants will have excuses – and one of them might be the CDC rule about evictions during the pandemic. However, all the eviction rules related to the pandemic involve non payment of rent, and not lease violations. So when the tenant tries to plead against eviction with a pandemic related argument, if they were evicted for breaking the lease, they will still have to go. The moral of this story is to make sure you have strong wording in your lease so you can support a lease violation if it becomes necessary.

If you think the tenant has abandoned the property, it is faster – if the landlord can reasonably say the property has been empty for a week, then they can post a 5 day abandonment notice on the door, and if no one calls you and it is still empty 5 days later, the landlord can change the locks.

So you have them out, and you are all set right? No … Pursuant to ARS 33-1370, you get to inventory and store their property. I recommend taking thorough videos in addition to making a list of the major items left in each room. Then you send the inventory along with where the property is stored, and the moving (if you moved it) and storage costs (pro-rated rent is what I charge, so for a 900 a month rental it is $30 a day storage.) You get to keep their stuff for 14 days before you can dispose of it, which means selling it and offsetting what they owe with what you get from the sale. Also, if the tenant informs the landlord in writing before the 14 days are up, that they want to get their property and are willing to pay the storage fees, then the landlord needs to give them access to get the property. So in the worst case we are at an additional 14 days so Day 45, more or less.

One landlord friend had a car left in their driveway which was not registered to anyone in the rental, and when performing a title search noticed that there was a lien on the car, and the lien holder repossessed the car. This absolves the landlord for any responsibility for the car.

The tenant has to notify the landlord in writing, of their intent to retrieve their property. Without this notice, the landlord is not obligated to do anything; but most of them will want the tenant to haul off as much of their property as possible!

Please note, I am a landlord, not a lawyer, and so this is not legal advice. If you are contemplating an eviction or writing a lease, I STRONGLY urge you to use the services of an attorney who is in the trenches and deals with this sort of thing every day.



Alacrity: That’s a policy choice in ending insubstantial quarters’ availability for homeless persons seeking shelter. Sadly, the advance of the novel coronavirus may force the hand of leaders in some urban areas, should chronic unemployment swell the ranks of persons lacking shelter.

For almost 20 years, I’ve been a Habitat for Humanity volunteer, although the intensity of my involvement waxes and wanes with my arthritic state. I love the fellowship of folks together trying to help a small family gain greater independence and security. I’ve had the honor of working on about 12-15 Habitat builds in central Arizona, as well as another 3-4 in Puerto Peñasco in Sonora, Mexico through Amor Ministries. I recite this only to point out that I’m familiar with charitable building of shelter for the under-housed. But neither of these organizations, nor any analogous organizations around North America, nor all of them combined, can under their present delivery models make a serious dent in the rising population of homeless persons. Why? In the case of Habitat, because the typical build lasts between 13 and 18 weeks to complete, a wide swing of time to account for different housing product and uncontrollable weather conditions. There’s joy in proceeding slowly, using volunteers that can work (ordinarily) only on weekends, doing redemptive, deliberate work to complete a solid if slightly imperfect finished residence and lot. And it’s too slow, when you consider that a finished Habitat residence accommodates typically no more than six people.

If Habitat doubled, or heck, quintupled its output, it would still be too slow to resolve the sheltering of individuals who, unaided, cannot make housing choices. The need for affordable housing is too great and currently seems destined to grow. America needs to act as if this were the aftermath of a massive natural disaster. This housing should be built at the rate of 50 thousand units annually. How is that going to happen? Well, it won’t, if local leadership doesn’t adopt two mindsets. First is that the problem of homelessness must be addressed in her or his lifetime, not later. Second, the concession must be made that template construction is going to result in producing indestructible, dependable shelters – not elegant housing. Decent housing – not fancy accommodations, produced under a few design templates. Will that, you wonder, mark that housing as made “for those people?” It may indeed – and if it’s sturdy and enduring, that’s the tradeoff – addressing the shelter problem, not anyone’s aesthetic preferences.

The raw materials to allow this sort of acceleration in production exist now. They’re cargo storage containers, cutting and welding torches, and insulating materials. There are thousands of cargo storage containers sitting in port cities ready for acquisition across the country. These containers come in very few configurations – they’re 20 or 40 feet long, and a bit taller (9.5’) for the refrigerated Conex boxes than the unrefrigerated sort. A 40-footer yields essentially 300 square feet of livable space, since nearly all Conex boxes are 8 feet wide – a respectable “tiny house” interior footage. There’s been a lot of writing on their conversion into housing opportunities. Here’s a recent blog post from April, 2020, from Curbed:

Template designs for single Conex boxes and combinations of welded boxes readily can be produced, because there are so few alternative sizes. It’s practically steel Lincoln Logs – type draftsmanship. (Sounds dismissive from someone not expert in drafting, but that doesn’t change my point, one reinforced by a number of Websites where designers are displaying their model homes built from Conex boxes. If you can design a tiny house, you’ve got this challenge in hand.) Templates could be created that retain a few “selections” for the prospective owner for windows, door styles and exterior colors. These types of dwelling units are now permitted by law in nearly every state. Part of the transition to their acceptability is the result of the tiny home trend.

The next step after seizing on acceptable template designs satisfying existing building codes is to allow for greater density. Even “protective” Oregon is considering allowing four small homes on lots currently zoned for single-family homes in its cities having a population of 10,000 or greater. Further, projects made from Conex boxes should be permitted with limited required parking to eliminate more than one required parking stall per dwelling unit plus a few guest stalls.

Cities with surplus residential lots should surrender them to builders under Development Agreements enabling tracts to be re-subdivided for lot configurations yielding humane if not upmarket density. Dwellers can plant vegetation in community gardens or containers on their individual tract and are free to decorate away inside these unit’s interiors. This is not mean-spirted parsimony. This is solving a problem. And by the way: What message is delivered by the NGO community telling a housing prospect there is a wait of many months, if not years, for their dwelling to be readied? Is it less shabby treatment advising someone to wait their turn, when sturdy housing can be modularly designed and configured, permitted and erected on slabs, in weeks instead of months or longer?

Ganja Sense His Nekkid Self-Promotion?

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Force the (Legal) Issue, Before Courts Are Overpowered

For folks who cannot get enough of the argument that force majeure has excused anyone from performing an unpleasant or difficult contract obligation, you’ll want to watch Pacific Collective LLC v. Exxon Mobil, filed in Los Angeles County Superior Court, in Case No. 20-STCV-13294.

In that litigation, the Plaintiff California retail developer (Pacific) claims the state’s coronavirus lockdown was an “act of God” preventing it from completing a $4.2 million property acquisition with the seller. Apparently, Pacific Collective invoked a force majeure contract clause on March 30, a day before the acquisition was to close. It claimed the closing couldn’t be held without defying Los Angeles County “stay at home orders.” (That’s interesting, considering that funds today are wire transferred and closing document recording is digital. Then, there’s DocuSign.) Three days later, Exxon Mobil Corp. notified the developer it would cancel the sale and keep the company’s deposit, according to the lawsuit.

There’s more. The plaintiff also wants the court to issue an injunction preventing owner Exxon Mobil Corp. from selling to any other buyers. Until when? Until Pacific Collective gets the mood? In some jurisdictions, Sellers are required to mitigate damages in a contract dispute, and one method is to try to locate a substitute buyer for the defaulting Buyer. (In the sale of goods covered by the UCC, that’s known as “cover;” but this isn’t personal property at issue.)

Add to your reading list a piece in the April 17 New Yorker magazine piece by Carolyn Kormann, who interviews a disease ecologist hunting down viruses among cave-dwelling bats, blaming human activity for our exposure to deadly novel viruses. Last I looked, the article was here:

Eventually, an appellate court’s going to take on sorting out whether force majeure clauses cover horrible events like Covid-19 merely because the event is horrible – irrespective of what, or who, promoted the horror. If states don’t sort this out at the appellate, there will be more lawsuits over contract performance than any trial court system efficiently can manage. Then you’ll witness overwhelming forces at work!

Excessive Social Distancing: 15-yard penalty and Loss of Down

A restaurant chain wrote this text in a form letter, sending it to dozens of landlords across the land last week:
“As you know, the COVID-19 crisis is having a devastating impact on the restaurant industry on an unprecedented level. The National Restaurant Association projects an economic impact of at least $225 billion with five to seven million jobs lost. Bagel Brands is no exception to this impact, and it is therefore now incumbent upon us to balance this impact on all of our stakeholders as best as we possibly can. At Bagel Brands we are focused on giving the highest priority to protecting the health and well-being of our customers and team members as we also ensure the long-term viability of our company.

I am writing to update you on steps we are taking with respect to our landlords. We understand that we are in this together and while these are necessary steps, the consequences to both top line and bottom line are significant to our businesses. Our objective is to emerge on the other side of this COVID-19 business crisis in a position to regain our footing, re-staff our operations, and once again grow our brand.

To mitigate some of the impact of this COVID-19 crisis, Bagel Brands will implement revised rental payments beginning April 1st.

Revised rental payments will provide relief to protect Bagel Brands’ continued operations while also supporting some payments to you. The amount we will send you reflects our estimates of what we can pay given the current and anticipated business environment.”

The letter then went on to say that the rent would be reset every month, depending on how BB saw things unfolding, and that BB wasn’t waiving any of its lease defenses, including (naturally) force majeure.

Not only does this violate Widener’s precepts of (a) being kind to one another in these difficult times, and (b) being communicative, this posture only makes sense in certain contexts – not in every set of leasing circumstances, in other words. And the knuckle-headed reliance on the French expression for “uncontrollable conditions” continues to baffle me. So, a bit of history from, golly, back to the preceding decade.

A fellow named Trump had development companies and joint ventures called loosely the Trump Organization (“TO”). TO wanted to build its biggest mixed-use hotel project to date in the business center of Chicago. To do so, TO had taken out a $640 million loan — including $40 million Donald J. Trump personally guaranteed — to finance the Trump Tower on the site of the old Chicago Sun-Times building. When $40 million was due in 2008, TO didn’t pay the installment, after the bank advised TO it would not amend the note to provide an extension for the installment due date. Deutsche then sued on Nov. 28, 2008.

TO, in a counter lawsuit filed in New York City, asserted “force majeure.” TO claimed that the 2008 economic crisis was a “once-in-a-century credit tsunami,” an act of God equivalent to an earthquake. Since the Great Recession couldn’t have been anticipated, and it wasn’t the TO’s fault, TO and the guarantor weren’t obliged to pay Deutsche Bank anything.

The TO complaint alleged:
“This action by Deutsche Bank [refusing to grant an extension to pay the impending installment] is a breach of Deutsche Bank’s obligations to Borrower and the other lenders. Deutsche Bank has created a disjointed and dysfunctional group of lenders and Deutsche Bank’s actions will cause tremendous damage to Plaintiffs, the Trump brand, the Project, and those lenders who are trying to act reasonably and in good faith.”

Claims and counterclaims in the litigation settled in 2010, with Deutsche Bank’s lender group giving a five-year extension on TO’s previously defaulted loan.

Does that mean that the “force majeure” is a viable defense? Settlements occur for myriad reasons, and just some of them are based on merits of legal claims. If you believe that “force majeure” automatically excuses your performance of any of your legal obligations in these days of isolation and stay at home orders, you’re free to proceed to defy your landlord and other creditors. And you’re foolish. At a minimum, you’re not Donald J. Trump.

To recap: Covid-19 isn’t an act of God. It was caused entirely by homo sapiens. If your store can still be operated, you’ve not got a leg to stand on, IF your lease says the tenant must either be denied all access to the leased premises or otherwise be put out of business altogether. And lost profits is not synonymous with “loss of all revenues.” If your store has a drive through feature or pickup window, you don’t have a force majeure defense, in all likelihood.

Get a lawyer to read your lease’s force majeure clause, if it contains one. You need to understand what the language says before acting. Not what you think it means, or what you hope it means. If you guess wrong, you could have a judgment taken against you for the rent due for the entire remaining lease term. It’s too early in this crisis to be filing for bankruptcy, folks.

Let’s End Homelessness, Part 2: Where’s the New Housing Going?

Three fundamental policy choices underlie municipal decisions on reducing homelessness: Location, permanence and prioritizing the quality of housing stock. The first choice deals with the simple calculation of “where will you put the homeless housing inventory?” It would be convenient to leadership if cities could simply privateer numerous under-utilized motels, hotels, and other residential and quasi-residential sites and move homeless persons into them. Since that inventory likely isn’t sufficient and cities aren’t privateers, let’s dispose of that fantasy and move on. There’s not going to be a convenient concentration of sites, so policy leaders are going to have to disperse the inventory in almost all communities. Most cities won’t be lucky enough, in other words, to have the federal government abandon a military base of hundreds of acres in size covered by dozens of convertible residential and other buildings. Absent the “campus opportunity,” the homeless will have to be dispersed throughout a city’s boundaries.

Everyone in an enlightened city will have to share the burden of addressing homelessness. It’s a city wide problem from which no one can “opt out,” despite zoning ordinances deliberately calculated to keep traditional single family neighborhoods pristine and grand. Happily, there’s an opportunity to disperse the homeless population, through the mission work of church, temple and mosque campuses. A significant majority of churches, etc., have immense parking lots; and they are scattered around the city. A significant number of churches and temples are over-parked, whether their parking burdens were sensibly calculated or not from the outset. Finding a half acre or more of land within parking fields on a church campus that could accommodate eight to 10 or housing units would not be difficult. Sabbath services that fill the parking areas of most churches and temples constitute such a low percentage of gatherings held on these campuses that building on some parts of these parking areas would not be missed.

I cannot address most temples or mosques, but I’m confident that many churches are decreasing in weekly attendance and participation. This explains why cell towers are becoming features of church campuses in communities where coverage is spotty. There’s nothing aesthetically pleasing about cell towers compelling church leaderships to seek partnerships with wireless communications companies. Seems to me that churches will be induced to support some degree of homeless housing through government subsidies for providing housing opportunities in transitional housing.

Yep, this policy choice is going to create havoc in neighborhoods claiming they’re desperately fighting to preserve their character and quality. Some such neighborhoods cannot be induced to consider hosting affordable housing, much less this “disruptive” residential use. That’s an issue for leadership to manage through appropriate backbone and messaging. It’s simply unlikely that homelessness will be productively curbed without neighborhoods’ acceptance of their collective burdens to participate in the solution. And that means allowing housing for portions of the homeless population in your neighborhood. It’s not unreasonable to establish a few ground rules for homeless persons entering into a new neighborhood, however. Local government should be prepared to promote regulations that are humane and protect some measure of neighborhood serenity.

Of course, church, temple and mosque campuses are suitable locations for transitional homeless housing for several other reasons. Many of them have industrial-scale (or smaller) kitchens suitable for central processing of prepared foods for homeless on-campus residents.

God bargained for a mutual covenant: I will be your God, in return for which you will be my people. Grace ain’t cheap, D. Bonhoeffer wrote. Many churches and temples will be ready to explore doing their parts. Maybe mosques, too. Established neighborhoods have to take on a few of the hardships, too. At least, if we’re all serious about ending homelessness.


Knucklehead season is underway. A mattress company sent a “firm” letter to my landlord client announcing it was shorting its monthly rent installments for a while, starting next month. No description of by how much Tenant is discounting rent, or for how long – it’s just announcing “this is happening.”

The problem is that a second virus, called misinformation, sweeps the American commercial leasing landscape. This virus has settled on one lease provision known as the force majeure clause. It begins with the false believe that the clause essentially means, “if you’re in a jam, you don’t have to pay rent.” The text of the force majeure clause in a lease may vary radically from one deal to the next. If you’re a tenant, you may think you understand the text of the clause, but you may badly be mistaken. Here’s the clause, extracted from the lease I’m commenting on:

Inability to Perform and Force Majeure: EXCEPT as to the Target Date AND THE TIMELY PAYMENT OF MONETARY OBLIGATIONS HEREUNDER, Landlord and/or Tenant shall be excused for the period of any delay and neither party shall be deemed in default with respect to the performance of any of the terms, covenants, and conditions of this Lease to be performed by it if any failure of its performance shall be due to any strike, lockout, civil commotion, war, warlike operation, invasion, rebellion, hostilities, military or usurped power, sabotage, governmental regulations or controls, inability to obtain any material or service, Act of God, weather, or any other cause whatsoever that is not (i) failure of financial markets, or (ii) lack of availability of funds due to cash flow problems caused by the party’s mismanagement or over encumbrance of its resources (including failure of either party to supply necessary data or instructions) beyond the reasonable control of such party, and the time for performance by such party shall be extended by the period of delay resulting from or due to any of said causes.

See the problem? Mattress Guys agreed that force majeure won’t excuse the ongoing payment of its rent obligations – in writing!! In fact, there’s about 3 other instances of bad language for the Tenant in this paragraph. But, don’t let that keep you from taking an aggressive position! There’s nothing to be gained by talking to your Landlord and requesting some relief, when you can punch your Landlord in the nose in a letter – right? Well, no, in case my sarcasm isn’t obvious; there is much to be gained by communicating with your leasing counter-party.

By the way, a plague of locusts may be an Act of God, but poor human dietary and hygiene habits, combined with failure of government and the healthcare infrastructure, resulting in a pandemic does not an Act of God make. There’s no “out” in the quoted lease’s text for a pandemic. Not, at least, until the applicable local government declares that shopping at retail stores other than food markets is not permitted under any circumstances. Were it not for the capitalized words in the clause offered, the shutdown of shopping might qualify as a force majeure event under “governmental regulations or controls” beyond Tenant’s reasonable control. That hasn’t happened in Arizona and a majority of states, although there’s a trend line apparent.

More consequentially, by the way, Mattress Guys just repudiated the primary term of the lease, the rent covenant. The New York Court of Appeals once succinctly stated: “An anticipatory breach of contract by a promisor [a promising party] is a repudiation of a contractual duty before the time fixed in the contract for its performance has arrived.” I’m not paying your rent next month, expressed in writing, is an anticipatory breach.

But words of caution: First, if the Landlord regards Tenant’s apparent repudiation as an anticipatory repudiation, terminates Landlord’s own performance (such as by locking out the Tenant before the next installment of rent is due) and sues for the breach, the Landlord is in jeopardy of being found to have breached, if the court determines the apparent repudiation was not sufficiently unequivocal to constitute an anticipatory repudiation justifying Landlord’s non-performance. (A Landlord with a squishier lease than the quoted one above may have to seek clarification before going nuclear on the Tenant, no matter how incensed the Landlord becomes upon receiving a knucklehead communication.)

Second, A party who has repudiated its obligations under the contract may nevertheless retract its repudiation until the other party has terminated the contract or materially changed its position in reliance on the repudiation. Better the parties should keep talking and trying to accommodate one another, to avoid these quagmires.

Good Taste, Nutrition and Competitive Balance in the Food Industry, 2020 Edition

Local regulation of land development and operation guards against reckless and self-absorbed conduct by landowners. Zoning codes came along in the early 20th Century to diminish incidences of factories locating near residential areas for the convenience of their owners needing readily available labor, before use of autos was widespread. The result was contamination of rented residential quarters with fugitive dust and airborne poisons, as well as contamination of drinking water. People began owning residences and land in cities used for other non-factory purposes, and the regulatory bureaucracy grew. As zoning regulation became more commonplace, the pendulum swung sometimes toward pervasive regulation of ever finer-grained details of city neighborhoods. In moments like the Covid-19 pestilence, we need to recall that, temporarily at least, aesthetics is a less compelling virtue than economic survival. Here’s a small suggestion that could have a ripple effect of some magnitude in the current circumstances. First of all, let me assure you I have no political persuasion in the matter, since I’ve represented single unit (mom and pop) restaurant operators, corporations having multiple units in the Phoenix Valley, and fast-food franchisees alike. Among them, they employ more than three thousand persons. Well, until lately they did.

The Phoenix City Council, and other communities around the Valley, have halted the primary functions of full-service restaurants and bars. It seems to me that banning in-property dining practices will serve to divide prepared-food providers into two groups. The fast food (and quick beverage-serving) franchisees will suffer but will survive because social distancing is in their business model. That’s because, I understand anecdotally, virtually all of them sell most of their food and drinks through their drive-thru lanes already. (Except those like Dominoes that are essentially only in-and-out pickup/pay, of course.) The small, less-well marketed restaurants are getting clobbered, even those with locally stronger brands. Ironically, this means the “winners” in this divide will be the ones selling less healthy food and soft drinks as standard fare. I’m not judging anyone’s diet in observing that this reality doesn’t advance either short- or long-term public health. (And, of course, I am judging someone’s diet! My wife attended cooking school in Paris in the 1970s. Yeah, I’m a food snob, one acquiring his paunch honestly and contentedly.)

If a City Council decides to order the closure of restaurants for indoors sales, I propose that City suspend all enforcement of its sign code addressing temporary banners. This would permit non-franchised restaurants to advertise to “folks on the street” that they remain open for takeout order business. The city could dictate the size, shape and attachment of temporary signs so long as the regulation didn’t make it prohibitively expensive for restaurants to comply. In fact, you even could devise standard “copy” or even a symbol indicating that a restaurant is open for business for takeout, like a “T” (for takeout) in a particular, uniform hue. Since a lot of restaurants don’t have a big visibility window (except free-standing buildings occupying corners – usually, franchisees of big chains) along major streets, having a uniform, readily-recognizable symbol facing the nearest street would aid restaurants operating with takeout and people searching for those dining opportunities.

You could argue, “can’t they just fix their website to indicate they’re still open?” Sure, assuming optimistically that (a) the store has a non-static webpage, (b) the cost of modifying their web pages is affordable (what about their ongoing ability to pay for hosting their Websites?), and (c) many former “seated” customers routinely review small-restaurant webpages in the hope of seeing good news on deliveries and take-out, instead of reflexively cruising over to Brand X purveyor of fine foods (oops, if I just violated AJ’s trademark, may Bashas’ forgive me!) with drive-through lanes, menu boards and two windows to collect your payment and hand you your fries.

I’d sure like to see some small restaurants’ employees keep their jobs during a tough time. This proposal, as well as any other loosening of regulating signs or any portion of a local zoning ordinance, won’t guarantee that will happen. Still, temporary liberalization may increase small businesses’ survival odds somewhat. The rest, of course, is controlled by the managements of these enterprises. And good luck to all of them.

Note: The need for banners isn’t my conception. Local restaurants who aggressively pursue survival are already putting up exterior printed banners. Predictably, they intend to call attention to their whereabouts. Predictably, some such signs are garish and larger than they need to be–unless their target customers are the genetic lineage of Mr. Magoo!


An NLP Visualization Exercise for Coronavirus COVID-19

We all know that our other than conscious mind is very powerful; it keeps our hearts beating, our lungs breathing, our spleens spleening (is that a thing?) and so one of the most powerful things we can do to stay healthy is to be sure that both our conscious minds, and our other than conscious minds, are in alignment about our health.

Many of us struggle with health issues which are sometimes a problem between what we think we want and what our other than conscious mind is doing. So let’s look at what we can do to get them in alignment.

There are several ways to get yourself in alignment. My preferred method, and one you can do yourself easily, is using a form of visualization. Visualization is used by many sports figures to increase their performance, by visualizing the result they want, repeatedly. Steve Nash, who had the best free throw record in Basketball, could be seen visualizing the result he wanted right before making the shot, visualizing the ball going in. Aerobatic performers like Patty Wagstaff use visualization to “fly” through their entire routine before getting in the plane.

And on a more relevant note, a researcher named Lee Pulos worked with cancer patients before they had surgery, and was able to get tumor sizes dramatically reduced, using visualization. There are many other examples, one is my own story wherein I got my complexion to not be horrible by visualizing myself with perfectly clear skin.

So how does it work? We need to find a way to talk to our other than conscious mind. A hypnotist can do it, get the conscious out of the way, but there are ways you can do it, too.

When you are ready to go to sleep, close your eyes and visualize your body being strong. Grounded. Powerful. Invincible to the effects of viruses. Visualize a star-trek like shield around yourself; impenetrable to any bacterial or viral agent that might try to reach you. See the virus particles hit the shield and just fall off. See the shield grow stronger and stronger, as you sleep. See it get stronger with each breath you take. Make it the color that means health to you. Each time you take a sip of water, each time you breathe, each time you reach for your phone, think of the shield getting stronger, more powerful, more protective.

Smile as you see the shield around you. Relax, knowing you are well. That you are protected. Do this as you fall asleep every night, and do it as soon as you find yourself awake in the morning, right before the alarm goes off. See the shield around you, in your mind’s eye, as you walk around. See it in the shower. See it flare in increased strength each time you leave your home or car.

This works the best for me if I use it to fall asleep. Lay down in bed, turn off the light, set the alarm, do whatever it is you need to do to prepare to go to sleep. Then, if you have a routine you use to fall asleep quickly, such as counting sheep, or your breaths, or whatever it is, instead, visualize the shield, see it working, see it strong and powerful. Observe how it totally blocks anything negative that might try to reach you. It stops viruses, bacteria, it even stops negative thoughts and emotions from reaching you. Your shield is yours, it protects you. Think about your shield, how powerful it is, how wonderfully and magically protects you. Do this as long as you can – until you fall asleep, still thinking about the shield.

When you awaken, whether it is just before the alarm, or because of it, take a moment, hit the snooze if needed, and visualize your shield again. See it grow stronger and stronger as you move from the semi-sleep state to the awake state.

It is during these times, when our conscious mind is tired, distracted, or otherwise out of the way, that we can most easily reach the more powerful other than conscious mind. As your conviction grows, so will the power of your shield.

The more you do this, the greater will be your protection.

Be well!


Landlords, Tenants, and COVID-19

An attorney I know sent this to me anonymously. Clearly not legal advice, but wise words. — Patrick

If you’re a commercial lease stakeholder, whether a landlord or tenant. You’re also navigating personal circumstances, trying to use sanitizer, stay away from crowds, wash your hands frequently – in other words, you’re using your head to avoid the worst outcomes.

So it is with the lease relationship. You’ve got to keep your wits about you. That means if you’re a tenant, you shouldn’t be calling me to ask how to break your lease and walk away with impunity from the obligations you’ve signed onto. Similarly, it means if you’re a landlord, you shouldn’t be lining up a locksmith to “functionally evict” your tenants who don’t pay rent and CAMS in full on the first or 15th of next month, whenever the next payment comes due.

This is my immediate advice: Keep calm and start thinking constructively. Until this moment, the counter-party to your lease was a valued ally of sorts – correct? Don’t turn that counter-party into Lucifer if you get a call requesting some consideration of some kind on performing the lease over the next few months. A couple of specific suggestions:

One, call your insurance agent about the scope of your coverage. Some of you may have business interruption insurance or loss of rents coverages. The former tends to be for tenants, while the latter is essentially for landlords. Business interruption insurance is intended to cover losses resulting from interruptions to a business’s operations, and generally covers lost revenue, fixed expenses such as rent and utility, or expenses from operating from a temporary location. While these policies most frequently relate to physical property damage, businesses should nevertheless assess their coverage to determine whether they might be covered for losses due to business interruptions resulting from COVID-19. Several businesses recouped losses through business interruption insurance for various operational disruptions after the global outbreak of Severe Acute Respiratory Syndrome (SARS) in 2002- 2003. In response to that payout, however, many insurers now exclude viral or bacterial outbreaks from standard business interruption policies. There’s nothing you can do about the eventuality that outbreaks may be excluded. It’s just a good idea to know where you stand.

Two, if you’re a landlord, call your tenants. Find out how they’re doing. Tell them, especially restaurants, yoga studios and other gathering places, and retail shops, that you’re rooting for them. Right now they’re scared out of their wits. If you’re a tenant, call your landlord. Let them know how you’re doing – but don’t lie to the landlord, give it to the landlord straight. BUT THE MESSAGE IS, KEEP COMMUNICATING. Don’t go dark on your lease counter-party, because that leads directly to an atmosphere of suspicion and distrust.

Third, if you’re a landlord or a tenant, begin thinking about contingencies. Landlords may want to begin thinking about what their cash flow requirements are from a project, and how to remodel their rent stream projections to account for the possibility that some tenant business models are cratering with no idea when those models will be restored, if ever. Tenants in the consumer product and service businesses will also need to think about their cash flow requirements and how their rent is going to be paid – at least in part. After 36 years of law practice, I can promise Tenants one thing – hunkering down and declining to pay Landlords any of the rent or CAMs due is the worst possible strategy for remaining in business in their premises, with a single exception. The exception is if you’re failing and intend to file for bankruptcy anyway. Otherwise, you’ve got to come to grips with the fact that ongoing bills facing the Landlord have to be paid, at least in part. So, stopping rent payments altogether causes a Landlord to make difficult choices that seldom resolve well for Tenants. The two sides need to figure out how to keep the Tenant open and get cash into the Landlord’s hands so the Landlord can keep the property open and in decent and safe condition.

After you understand what your cash flow needs are and how to come closest to achieving them, then you need to begin talking to your lease counter-party(ies) to discuss how and when the lease’s financial obligations will be met. And the landlord’s obligations, like those to maintain and repair the premises, also. Landlords may face the inevitable call to their lenders, to keep them informed, too.

There’s a buzz on the Internet that the so called force majeure clause in a commercial lease gives a tenant a “get out of jail free” card. That isn’t true, for reasons that I can go into with you individually. Tenants should not rely on that lease provision, if one exists, unless the applicable clause specifies that pandemic/epidemic events are force majeure events that trigger the Tenant’s right to cease performing under the lease. There are other common law legal theories that actually have more chance of success for Tenants, but again, that’s for individual consultations. And think about this for just a second. How much advice and representation will I want to provide you, whether you’re a landlord or tenant, knowing (as you may be tempted to advise me) that you’d like to use a fragment of lease language to stiff your contract counter-party? Am I next in line for such treatment?

It’s going to get tougher out there in the next few weeks, but be thoughtful and communicate. A bit of empathy for our fellow citizens will go a long way, too.

I’m rooting for each of you. And stay safe, you and your families, as best you know how.

— Anonymous Attorney