Revise Force Majeure Clause to Include Acts of War, Terrorism, and Bioterrorism

Revise your lease's force majeure clause so that it lists “acts of war, terrorism, and bioterrorism” as forces beyond your reasonable control, advises Sacramento attorney Thomas F. Stewart. Then, if a (bio)terrorist or military attack damages your building or center and, as a result, you can't meet your lease obligations, a tenant can't sue you for violating the lease, he says.

A force majeure clause says that you won't have violated the lease if you can't meet your lease obligations because of “forces beyond your reasonable control,” says Stewart. And it typically lists examples of those forces—such as acts of God, labor strikes, and shortages of materials. But it may not list acts of war, terrorism, and bioterrorism. These weren't a big concern before Sept. 11, 2001, he says. Even if your force majeure clause has a catchall phrase to cover “other causes” beyond your reasonable control, it should still list acts of war, terrorism, and bioterrorism, says Stewart. It will put the tenant on notice that those acts are covered, too, he explains.

CLLI Sources

Thomas F. Stewart, Esq.: Partner, Trainor Robertson, 701 University Ave., Ste. 200, Sacramento, CA 95825; (916) 929-7000.