By Melissa M. Stewart
Attorneys Help Business Owners Navigate COVID Issues Like Leases, Loans and Liability
Business owners have faced an incredible amount of challenges in the past year. Thankfully, they have also learned a lot in the process, including the value of seeking help soon and often. From PPP loans to leases and liability, local attorneys have been instrumental in assisting businesses with legal issues related to COVID.
“Usually it’s better to seek out professional help before everything has gone sideways,” suggests Brent Hayden, an attorney at Pender & Coward in Virginia Beach that specializes in corporate and transactional law, real estate and other general business legal services. “Conversations are better earlier than later.”
Hayden says that leases are one of the biggest concerns businesses have been dealing with since the beginning of COVID. Clients want to know if they are able to get out of contracts or obtain deferrals.
“The lockdown last year was crushing,” he says. “There are still lots of restrictions, and volume levels are still reduced. People are wondering how they pay their rent.”
Thankfully, most landlords understand what the pandemic has meant to retail operators and are willing to work with tenants. According to Hayden, common approaches are to defer, waive rent (sometimes with the promise of extending a lease) or a combination of both. Outcomes and solutions vary based on the circumstances.
Richard Crouch, a partner at Vandeventer Black in Norfolk who works with business, commercial transactions and commercial real estate matters, advises business owners to approach landlords with past financials and a strategic plan that includes information about what they have done thus far to deal with the pandemic.
“Try to partner with your landlord as well as you can,” Crouch says. “If you are transparent and forthcoming you are more likely to have a favorable result than blindly asking.”
Both Crouch and Hayden agree that moving forward, business owners should make sure that contracts include a force majeure clause with a provision that specifically addresses a pandemic situation.
“I have already seen changes as new contracts are being signed because business is not stopping,” says Hayden. “We have to continue marching on.”
Crouch says getting relief with loans is similar in many respects—local banks are helpful when communication is established early and continued on a regular basis.
He has navigated many clients through the Payment Protection Program (PPP)—the eligibility requirements, when to file, etc. He says business owners and attorneys should keep stay of the latest developments, including when the next stimulus may be, whether requirements or components of loan forgiveness have changed and when more money will be available.
“With small businesses in particular, you don’t want to miss having relief from that program because something was misfiled or not answered correctly that could have been easily avoided,” Crouch says. “Whether you have an attorney help you with that or loan officer or both, it’s definitely worthwhile to invest the time with an expert to make sure you do it correctly.”
Another hot topic lately has been premise liability. Concerned business owners want to ensure there are no legal ramifications if an employee or customer gets COVID.
“Anyone can sue anyone for anything, so causation would be a big issue here,” says Hayden. “The business owner is going to want to show that they followed all of the published guidelines from the CDC and the governor and exercised reasonable care.”
Crouch recommends that business owners are knowledgeable about what insurance they have in place and consider supplemental coverage, along with following all of the rules and mitigative measures.
“If you do have an exposure or someone that contracts COVID on the premises, you need to make sure you can at least say that you followed the best practices that were available at the time,” he says.
To find a qualified business law attorney, Hayden suggests checking with the local bar association as well as asking friends and family for references. He says to make sure they have experience with business and transaction work and employment law. Seeking counsel now will set business owners up for success in a post-pandemic climate.
“This is one of those situations where you really feel like you are helping a person with real world, tangible issues,” he says. “With contracts and leases, you are talking about the viability of the business. These are vital concerns that directly impact that business owner and their delivery of services.”
