Another Tenant's COVID Frustration Defense Comes Up Empty

 What Happened:  Stop me if you’ve heard this one before: A restaurant tenant struggled to pay rent after the governor issued a COVID-19 shutdown order in March 2020. In August, the landlord sued for breach of lease. The tenant admitted to owing the landlord rent but claimed impossibility and impracticability. The court rejected both defenses.

Ruling: The Maryland appeals court upheld the lower court’s ruling in the landlord’s favor.

Reasoning: The court cited state model jury instructions on interpreting the impossibility defense providing that “a contract is not impossible to perform if the party has the choice of performing it in several ways and at least one of the options is possible.” In this case, the governor’s COVID orders of June 2020 allowed the tenant to operate the restaurant on a limited basis by offering takeout and delivery. And since the business wasn’t totally shutdown, the impossibility and impracticability defenses didn’t apply. It was also okay for the lower court to award the landlord attorney fees, the court concluded.

• Shri Sai, LLC v. Cascade Montpelier, LLC, 2022 Md. App. LEXIS 552, 2022 WL 2981493