What Is a Force Majeure Clause?
Force majeure is French for "superior force." In commercial real estate, a force majeure clause excuses one or both parties from performing their contractual obligations when an extraordinary event beyond their control prevents performance. The clause typically suspends — not eliminates — those obligations until the event passes.
The critical distinction most tenants miss: force majeure in commercial leases almost never excuses rent payments. Courts have consistently held that rent is a financial obligation separate from "performance" obligations like completing construction, making deliveries, or providing services. If you were counting on a pandemic FM clause to skip rent, you were likely disappointed — and the law backed up your landlord.
What FM clauses do cover is performance delays: a landlord's obligation to complete tenant improvements by a certain date, a tenant's obligation to open for business by a certain date, or maintenance and repair timelines. These are the areas where FM clauses have real teeth.
During the COVID-19 pandemic, virtually every commercial tenant attempted to invoke force majeure to suspend rent. Courts in most jurisdictions rejected these claims — not because FM clauses were absent, but because: (1) the FM clause excluded pandemics and government orders explicitly; (2) rent was defined as a financial obligation not subject to FM; or (3) the doctrine of commercial frustration (a separate legal concept) didn't apply. The lesson: review your FM clause before you need it, not during the crisis.
How Force Majeure Clauses Are Structured
A typical commercial lease FM clause has three components: the triggering events, the affected obligations, and the notice and resumption procedure.
Component 1: Triggering Events
This is the list of events that activate the clause. Landlord-favorable leases use narrow lists; tenant-favorable leases use broad, catch-all language. The difference matters enormously.
| Event Category | Common Examples | Typically Included? | Negotiation Tip |
|---|---|---|---|
| Natural disasters | Earthquakes, floods, hurricanes, tornadoes | ✅ Almost always | Standard — accept |
| Government actions | Government orders, legislation, regulations | ⚠️ Sometimes limited | Push for "government orders" to include lockdown orders |
| War & civil unrest | War, terrorism, riots, civil commotion | ✅ Usually yes | Standard — accept |
| Labor disputes | Strikes, work stoppages | ⚠️ Often limited to third-party strikes | Clarify whose strikes trigger the clause |
| Utility failures | Power outages, infrastructure failures | ⚠️ Sometimes | Negotiate to include utility interruptions beyond 48h |
| Pandemics / disease | Epidemics, pandemics, public health emergencies | ❌ Often excluded pre-2020; now more common | Critical: demand explicit inclusion post-COVID |
| Supply chain disruption | Material shortages, shipping delays | ❌ Rarely included | Relevant for build-out timelines; negotiate if TI work is involved |
| Catch-all language | "Other events beyond the parties' reasonable control" | ⚠️ Sometimes | Push for broad catch-all — it's your safety net |
Component 2: Affected Obligations
The clause must specify which obligations are excused. This is where most leases create massive asymmetry:
- Typically excused: Construction timelines, delivery dates, required opening dates, maintenance/repair timelines, required approvals or permits
- Almost never excused: Rent payments, operating expense contributions, security deposit obligations, indemnification obligations
Landlord counsel routinely inserts language like: "Notwithstanding anything to the contrary, force majeure shall not excuse or delay Tenant's obligation to pay any Base Rent, Additional Rent, or other sums due under this Lease." If your lease contains this language, a pandemic does not pause your rent.
Component 3: Notice and Duration
Most FM clauses require the affected party to give prompt written notice — typically within 5 to 30 days of the force majeure event. Miss this window and you may waive your FM rights entirely, even if the event would otherwise qualify. The clause usually also specifies:
- A maximum duration beyond which the other party can terminate (often 90–180 days)
- A resumption obligation once the event ends
- Whether the lease term is extended to compensate for the delay period
Force Majeure vs. Related Doctrines
Force majeure is often confused with two related but distinct legal doctrines: frustration of purpose and impossibility. Understanding the differences matters when your FM clause is silent on a specific event.
| Doctrine | What It Covers | Standard to Invoke | COVID-19 Outcome |
|---|---|---|---|
| Force Majeure (Contractual) | Events listed in the lease clause | Event must be on the list; notice required | Failed for most tenants (pandemic excluded or rent carved out) |
| Frustration of Purpose | The principal purpose of the contract is frustrated by an unforeseen event | High — purpose must be nearly completely destroyed | Mostly failed — courts said partial impairment ≠ frustration |
| Impossibility / Impracticability | Performance is literally impossible or commercially impracticable | Very high — must be truly impossible | Failed — paying rent is never truly "impossible" |
| Government Order Defense | Illegal or government-ordered closure | Must be a direct prohibition on the specific use | Mixed results — some tenants in mandated-closure industries prevailed |
Force majeure, frustration of purpose, and impossibility are all difficult to invoke successfully in a rent dispute. Courts strongly favor lease obligations being honored. Your best protection is a well-negotiated FM clause — not a post-crisis legal argument. Negotiate before you sign; don't litigate after the event.
What Force Majeure Actually Covers in Practice
Even though FM rarely excuses rent, it plays a major role in three specific scenarios:
Scenario 1: Tenant Improvement Construction Delays
A landlord commits to delivering the space "ready for occupancy" by a certain date with completed tenant improvements. A supply chain disruption delays lumber delivery by 60 days. Without FM protection, the landlord may be in default. With FM, the delivery date is extended by the period of delay. Tenants should ensure their lease specifies what happens to their rent commencement date when the landlord exercises FM for construction delays. If the landlord gets a 60-day FM extension but your rent starts on the original date anyway, you're paying for space you can't occupy.
Scenario 2: Required Opening Dates for Retail Tenants
Many retail leases require the tenant to open for business by a specific date — tied to the shopping center's grand opening or co-tenancy requirements. A government-ordered closure could prevent opening. FM protection allows the opening deadline to be extended without triggering default. Push to include: government orders, public health mandates, and supply chain disruptions in the triggering events if you're a retail tenant with an opening deadline.
Scenario 3: Landlord Repair and Maintenance Obligations
HVAC systems fail. Roofs leak. Elevators break. Landlords have repair timelines. If a contractor strike or supply chain issue delays the repair, FM protects the landlord from default claims. Tenants should negotiate that FM does not excuse landlord repair obligations that affect tenant's ability to operate — or at minimum, that rent abates if the landlord invokes FM for a casualty repair that leaves the space untenantable.
Negotiating a Stronger Force Majeure Clause
Here are the specific language changes that actually protect tenants:
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1Explicitly include pandemics and government orders Add: "government orders, government-mandated closures, public health emergencies, epidemics, pandemics, or other widespread disease events" to the triggering events list. Post-2020, any landlord refusing this is being unreasonable — it's now standard in well-drafted leases.
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2Add rent abatement for landlord FM delays Push for: "If Landlord invokes force majeure to delay delivery of the Premises or to delay completion of Tenant Improvements, Base Rent shall not commence until the date that is [X] days after actual delivery." This prevents paying rent while you can't occupy.
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3Push for a termination right after extended FM periods If a force majeure event lasts more than 90 or 120 days, you should have the right to terminate the lease without penalty. This is especially important if the FM event prevents you from operating your business. Landlords may resist, but it's reasonable.
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4Negotiate rent reduction for government-ordered partial closure If a government order mandates your business operate at reduced capacity (50% occupancy limit, outdoor-only service, etc.), push for a proportional rent reduction. This requires specific "government-mandated capacity restriction" language tied to a rent adjustment formula.
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5Require prompt notice and audit rights The FM clause should require the invoking party to provide written notice within 5 business days, describe the event with specificity, and provide ongoing updates. This prevents a landlord from vaguely claiming FM months after a delay begins to avoid default liability.
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6Cap the FM extension period Include: "Notwithstanding the foregoing, in no event shall force majeure extend any deadline by more than [180] days in the aggregate." Without a cap, a landlord with FM protection could theoretically delay construction indefinitely.
Landlord Negotiation Pushback — And How to Counter
| Landlord Position | Tenant Counter | Rationale |
|---|---|---|
| "Rent is always excluded from FM" | Accept for base rent; push for rent abatement if FM delays delivery or if a government order prevents occupancy | Paying rent for space you can't occupy is unreasonable |
| "We won't include pandemics — too broad" | Agree to "government-ordered business closure" as a compromise — narrower but covers the key scenario | Government closure orders are what actually prevented operations — not the pandemic itself |
| "No termination right for FM events" | Push for termination after 180+ days; offer a higher threshold if needed (12 months) | Open-ended FM protection with no exit is commercially unreasonable for a long-term tenant |
| "FM is mutual — you have it too" | Accept, but ensure the clause doesn't let the landlord claim FM for things within their control (financing issues, development permits) | FM should cover truly unforeseeable events, not management failures |
| "Supply chain issues are too speculative to include" | Limit to supply chain disruptions affecting construction timelines specifically, with a 30-day minimum delay threshold | Supply chain delays are now foreseeable and common enough to warrant specific coverage |
Force Majeure Red Flags to Watch For
Some landlord-drafted FM clauses state: "Force majeure shall not include financial inability to perform." This is landlord-favorable but also standard. The danger: if COVID hits and you can't pay rent, the landlord argues this is "financial inability" even if your revenue is zero because of a government order. Counter with: government-ordered closure should be treated as FM regardless of financial impact.
A 5-day notice window to invoke FM is dangerously short. In a genuine crisis, you may not have legal counsel available immediately. Push for 15–30 business days notice from discovery of the event that triggers FM — not from the event itself.
Some leases include FM protection only for landlord obligations (construction delays, repair timelines) but not for tenant obligations (opening dates, build-out completion). This is one-sided. A balanced FM clause should protect both parties equally for construction and delivery timelines.
If a force majeure event continues indefinitely, you could be locked into a lease for a space you cannot use, with no way out. Insist on a termination right after 90–180 days of continuous FM, with written notice and a reasonable wind-down period.
If the landlord invokes FM to delay your occupancy date by 60 days, but the lease term isn't extended by 60 days, you're getting a shorter lease than you bargained for — while still paying rent for the full original term. Always confirm that FM extensions to delivery dates also extend the lease expiration date.
Some leases use only the phrase "events beyond the parties' reasonable control" without listing specific examples. Courts interpret this differently by jurisdiction. The safer approach: a specific enumerated list plus a catch-all — not just a catch-all alone.
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Force Majeure Clause Checklist
Use this checklist when reviewing or negotiating an FM clause:
- Triggering events list includes pandemics and public health emergencies — non-negotiable post-2020
- Government orders and mandated business closures are explicitly included — the mechanism that matters most for operating businesses
- Clause applies to both landlord and tenant obligations — mutual protection for construction timelines and opening dates
- Notice window is at least 15 business days from discovery — shorter windows create risk of inadvertent waiver
- Rent commencement delayed if FM delays delivery — no paying rent for space you can't access
- Lease term extended to match any FM-caused delivery delay — so you receive the full term you bargained for
- Termination right after 90–180 days of continuous FM — your exit if the disruption is prolonged
- Maximum FM extension is capped (e.g., 180 days total) — prevents indefinite delay abuse
- Rent abatement or reduction right if government order prevents operation — especially for retail and hospitality tenants
- Supply chain disruptions included for TI construction delays — relevant if landlord is building out your space
- Ongoing notice obligations specified — invoking party must provide updates as event continues
- Resumption obligation is clear — what happens when the FM event ends, including any grace period
State-by-State Force Majeure Notes
Force majeure is primarily governed by contract, not statute — which means your lease language controls. However, some states have common law doctrines that interact with FM:
| State | Key Consideration |
|---|---|
| California | Strong frustration-of-purpose doctrine; courts more willing to consider COVID impacts as FM when lease included "government orders" language. LA/SF offices had significant disputes. |
| New York | Courts applied very strict FM interpretation during COVID — most tenant claims failed unless the lease specifically listed "pandemic" or "government closure orders." NYC courts set influential precedent rejecting FM rent defenses. |
| Texas | Generally tenant-unfavorable interpretation. FM clauses narrowly construed; impossibility doctrine rarely applied to rent obligations. Dallas/Houston retail tenants largely lost FM arguments. |
| Florida | Mixed results. Tampa/Orlando hospitality tenants had more success where leases included "government actions" language. Pure financial hardship arguments failed uniformly. |
| Illinois | Chicago courts took a narrow approach consistent with NY. FM clauses requiring strict compliance with notice provisions; waiver common when notice was delayed. |
How LeaseAI Identifies Force Majeure Clause Issues
When you upload a commercial lease to LeaseAI, the AI extracts and analyzes the force majeure clause specifically — flagging whether it includes pandemic language, government orders, mutual protection, and termination rights. You'll see the exact clause language, not just a summary, so you know exactly what you're working with before you negotiate or sign.
LeaseAI also cross-references the FM clause against the delivery date, rent commencement date, and lease term to flag whether a landlord FM delay could result in you paying rent for unoccupied space — one of the most common and costly oversights in commercial lease review.
Frequently Asked Questions
In most cases, no. Courts across the U.S. consistently ruled during COVID-19 that force majeure clauses did not excuse rent obligations because: (a) rent is a financial obligation typically carved out from FM; (b) pandemics were often not listed as triggering events; and (c) impossibility doctrine doesn't apply to money payments. Your best protection is negotiating explicit pandemic + government-closure language at lease signing, along with a rent abatement right tied to mandated closure periods.
"Act of God" is an older, narrower term typically referring to natural disasters (earthquakes, floods, hurricanes). Force majeure is the modern, broader term that encompasses natural events plus human-caused events like war, terrorism, government actions, and labor disputes. Most current commercial leases use "force majeure" — if your lease says "act of God" only, it may not cover government-mandated business closures or supply chain disruptions.
Missing the notice deadline typically waives your FM protection — even if the underlying event would have qualified. Courts treat notice requirements as conditions precedent to FM rights. If you believe a force majeure event is occurring, give written notice immediately and let your attorney sort out the specific timeline. Erring on the side of over-noticing is safer than waiting.
Yes — and this is one of the most common real-world applications of FM clauses. Landlords routinely invoke FM for supply chain delays, permit approval delays, and contractor availability issues. When this happens, confirm: (1) is the rent commencement date being extended by the same amount? (2) is the overall lease term being extended? If the answer to either is no, you need to renegotiate — you shouldn't be paying rent for a space under construction, and you shouldn't receive a shorter lease than you agreed to.
In most cases, direct negotiation is faster, cheaper, and more likely to preserve the landlord relationship. FM invocation triggers formal legal procedures, notice requirements, and potential litigation. If you're facing a genuine disruption, talk to your landlord first about rent deferral, abatement, or modified terms — then invoke FM as a backstop if negotiations fail. Keep in mind that invoking FM formally can be seen as adversarial and may sour the relationship.
If your lease has no FM clause, you fall back on common law doctrines — impossibility, impracticability, and frustration of purpose. These are extremely high bars for courts to accept, especially for financial obligations like rent. Your options are: negotiate a rent deferral agreement directly with the landlord, review your lease for any casualty or condemnation provisions that might apply, or (as a last resort) consult a commercial real estate attorney about available legal defenses in your specific jurisdiction.
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