CHAPTER 14 Conditions of Limitation and Defaults

• Jurisdiction: United States
• Publication year: 2022

CHAPTER 14 Conditions of Limitation and Defaults¹

Chapter Contents

§ 14.01 Operation of Condition of Limitation

[1] Requirements for a Condition of Limitation

[2] Equitable Relief

[a] Generally

[i] Yellowstone Injunctions
[ii] Obtaining a Yellowstone Injunction
[iii] COVID-19 Complications and the Availability of Yellowstone Relief
[iv] Equitable Relief
[v] Timeline for Relief
[vi] Language in Lease
[vii] Lease Termination Notice
[viii] Conditional Limitation v. Condition Subsequent
[ix] Cure Period
[x] Termination Period
[xi] Other Yellowstone Issues
[xii] Extraordinary Circumstances and COVID-19
[xiii] COVID-19's Ongoing Impact of the World of Commercial Real Estate

[b] Equity in Federal Court

[2A] Alternative Dispute Resolution

[a] In General—The Pros and Cons
[b] The Risks of "Baseball Arbitration" in Resolving Real Estate Disputes: A Neutral's Perspective
[c] Drafting an Arbitration Provision
[d] Managing the Arbitration Process
[e] Mediation
[f] Conclusion

[3] Notices

[a] Nonmonetary Defaults
[b] Monetary Defaults
[c] Notice Requirements

[4] Condition of Limitation Clause

§ 14.02 Defaults

[1] Incurable Defaults

[2] Material Defaults

[3] Tenant Self-Help When Landlord Defaults

[a] Operation of Self-Help
[b] Rights of Superior Interest Holders

[4] Landlord Leasing Strategies to Address Tenant Defaults

[a] Additional Rent
[b] Rent Acceleration
[c] Late Charges
[d] Chronic Nonpayment
[e] Landlord Self-Help Rights When Tenant Defaults

§ 14.03 Determination of Damages After Default and Termination

[1] In General

[2] Under the Common Law

[2A] Clauses Limiting the Landlord's Liability

[a] Introduction
[b] Tenant Changes to the Landlord Liability Limitation Clause
[c] Landlord Changes to Its Limitation of Liability

[3] Under the "Killer Lease"

[4] Statutory Provision for Termination and Remedies [5] Reletting and Mitigation of Damages

[a] The Landlord's Obligation to Mitigate Damages
[b] Upon a

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