NNN Lease Force Majeure Provisions: What Landlords Need to Know

Most NNN landlords didn't think much about their force majeure clause until 2020. What followed � months of tenant demands, rent suspension claims, and competing legal arguments � exposed a real problem: the clause had been buried in the lease without anyone scrutinizing what it actually said or what it covered.

Here's what a typical NNN force majeure clause does, where it falls short from a landlord's perspective, and what to negotiate in new leases.

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What a Typical NNN Force Majeure Clause Says

Most NNN leases include a force majeure provision along these lines:

> *"Neither party shall be in default under this Lease if such party's failure to perform any obligation hereunder is caused by acts of God, fire, earthquake, flood, epidemic, acts of war, terrorism, civil unrest, government orders, or other causes beyond such party's reasonable control."*

The clause excuses performance when a qualifying event *prevents* it � not when performance becomes harder, more expensive, or less financially attractive. Courts have been consistent: the standard is objective impossibility or legal prevention, not economic disruption.

This distinction matters enormously. A hurricane that floods the premises and makes access impossible is force majeure. A recession that reduces a tenant's revenue is not. COVID-19 occupancy restrictions fell in disputed territory depending on the specific lease language and jurisdiction � and that ambiguity produced years of litigation.

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What Force Majeure Does and Doesn't Cover in NNN Leases

Typically covered:

Government orders that physically prohibit occupancy or use of the specific premises
Acts of God (floods, earthquakes, wildfires) that destroy access or render the space unusable
War or terrorism that directly impacts physical operations at the property

Typically NOT covered:

Reduced business revenue, even from a qualifying event
Financial hardship or inability to pay
Supply chain disruptions that increase costs
Reduced customer traffic or consumer behavior changes

The pandemic clarified this for most courts. The government orders in 2020 restricted *how* businesses could operate, but they didn't prevent tenants from making rent payments. Paying rent is a separate obligation from operating the business. Most courts rejected force majeure rent claims on this basis, with outcomes in California, New York, and Illinois particularly well-documented.

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The Rent Carve-Out: The Most Important Provision You May Not Have

A well-drafted NNN lease includes explicit language removing rent obligations from the force majeure clause:

> *"Notwithstanding the foregoing, the provisions of this Section shall not apply to Tenant's obligations to pay Rent or any other monetary amounts due under this Lease."*

If your leases don't include this carve-out, you're relying on courts to read it in by implication � which many have done, but not all. Older leases, particularly those drafted before 2010, frequently lack this provision.

The converse also matters for landlords with construction or delivery obligations: force majeure can excuse your own non-monetary performance obligations when supply chain issues, permitting delays, or other qualifying events prevent timely delivery. Make sure the clause works both directions.

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"Acts of Government" Language Creates Ambiguity

If your lease lists "governmental actions" or "acts of government" as a qualifying force majeure event without additional definition, you've created ambiguity. Courts split on whether COVID-19 closure orders qualified under this language, with outcomes turning on:

Whether the order completely prohibited use of the premises for *any* purpose, or merely restricted certain uses
Whether the tenant's specific type of business was prohibited or only limited
The jurisdiction and applicable case law

For new leases, the safest approach is to define what "acts of government" means: a lawful order by a governmental authority with jurisdiction over the premises that specifically prohibits physical occupancy for any lawful use. This limits the provision to true shutdowns and excludes operational restrictions that reduce but don't eliminate use.

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Notice Requirements: Protect Against Post-Hoc Claims

Many force majeure clauses have no notice requirement, which allows tenants to claim force majeure after the fact � sometimes months after they've simply withheld rent. Adding a notice provision closes this gap:

> *"The party claiming force majeure shall provide written notice to the other party within [5/10] business days of the commencement of the force majeure event, describing the nature of the event, the obligations affected, and the anticipated duration. Failure to provide timely notice shall preclude the claiming party from asserting force majeure for such event."*

A tenant who can't be bothered to send notice when claiming a qualifying event should not be able to retroactively invoke force majeure protection.

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Mitigation and Duration Limits

Two additional provisions worth including in new leases:

Mitigation obligation: The party claiming force majeure must use commercially reasonable efforts to overcome the qualifying event and resume performance as soon as practicable.

Duration-based termination right: If a force majeure event continues for more than 90 to 180 days, either party may terminate the lease. This makes sense for true destruction scenarios but must be paired with the rent carve-out to avoid creating a path for tenants to walk away from rent obligations during extended disruptions.

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Business Interruption Insurance: The Right Tool for Tenant Revenue Loss

The mechanism designed to cover tenant revenue loss from qualifying events is business interruption (BI) insurance � not force majeure. BI insurance compensates a business for lost revenue and continuing expenses (including rent) during a period when the business is interrupted by an insured cause of loss.

For NNN landlords, requiring adequate BI insurance is the correct way to protect against tenant payment failures during qualifying events. A tenant who invokes force majeure as a rent defense is doing so because they either didn't purchase adequate coverage or the event falls outside their coverage.

For the full picture of what insurance to require from NNN tenants, see our post on NNN lease insurance requirements.

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The Operational Takeaway

Force majeure sits dormant in most NNN leases for years � until a major disruption event arrives and suddenly every landlord is reading clause 14.7 for the first time. The 2020 experience demonstrated that lease language matters: landlords with clear rent carve-outs and narrow qualifying event definitions fared consistently better than those with ambiguous, tenant-friendly clauses.

The fix is not expensive. In a new lease negotiation, the provisions outlined above � rent carve-out, narrow definition of qualifying events, notice requirement, mitigation obligation � add minimal language and material protection. Build them in from the start.