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Novel litigation between commercial property owners and tenants arises from COVID-19 lockdowns. Typically, owners sue for nonpayment of rent. But in Franklin County, Ohio, a large retail tenant turned the tables and sued the owner to recoup payments.

Abercrombie & Fitch (A&F), Columbus-based apparel retailer, recently filed suit against one of the nation’s largest landlords, Simon Property Group Inc. A&F, which leases properties from Simon, alleges that Simon “wrongfully extracted” rent payments on those properties during the lockdowns that covered the nation. The amount of rent and number of stores impacted by the lawsuit is not disclosed, but according to public filings, A&F demands return of all rent payments to Simon during a specified period.

A&F essentially argues that it was not obligated to pay rent because it was locked out of its premises. More specifically, A&F argues that “the government-mandated closures amounted to ‘prohibitions’ under the terms of the lease agreements such that A&F was, and is, entitled to an abatement of any and all rent and other charges” during the lockdown. A&F maintains that Simon’s mere demand for payment during the lockdown constitutes a breach of contract, and any/all payments remitted were “under protest” and should be returned.  

Seeking to gain leverage by adopting an aggressive posture is a classic litigation technique that is now being applied in these unprecedented times. Whether the tactic will be fruitful depends on innumerable variables that begin with the contract language between the parties. Given the size and sophistication of the litigants, copycat actions and/or landmark precedents are likely to result.

For more information, please contact our Real Estate or Litigation teams.

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