To address non-payment of rent during this pandemic, commercial and residential landlords should prepare a written lease amendment and forbearance agreement for completion and signature by interested parties to the lease and its guarantor(s). A fully signed agreement will assure that a tenant’s request to defer or reduce rent, and any Landlord approval, are clear and reduce the risk of future litigation about what was agreed upon.
 
The agreement should set forth the term of any rent forbearance/deferral or reduction, modify any existing force majeure clause in the lease, require notice to the landlord regarding COVID-19 related or other loans or assistance applied for and received by tenant, and describe how loan and assistance proceeds will be applied toward arrears. The agreement should provide that it is confidential, that specified damages will be imposed if confidentiality is breached, and that it cannot be assigned. If there is an existing lender, consider whether loan documents require the lender’s approval as well.
 
The attorneys at GDB stand ready to help craft the appropriate document to address our clients’ concerns.