European Forum – Family Mediation Wed, 15 Sep 2021 22:31:21 +0000 en-US hourly 1 European Forum – Family Mediation 32 32 Commercial lease disputes during the current pandemic: the second wave Wed, 15 Sep 2021 21:03:59 +0000

With COVID-related litigation ongoing across the country, an in-depth analysis of the language of commercial leases is now more important than ever, as many questions remain unanswered. Much of the first wave of commercial lease litigation revolved around whether commercial tenants were required to pay rent when forced to close due to the pandemic and related government orders. Now, new disputes arise based on the lingering impacts of the pandemic and certain key clauses such as roommates, exclusions from sale, restrictive operating clauses, accident clauses and force majeure provisions are likely to play a crucial role.

For example, commercial leases typically contain colocation clauses that allow tenants to reduce their rent or, in some cases, terminate the lease if key tenants or a number of tenants are not open and operational. These provisions are in the foreground given the government-mandated closures, curfews and social distancing requirements that have forced companies to significantly modify and / or scale back their operations. As with any lease, it is important to read and understand the fine print. Some questions that we have seen arise regarding colocation clauses are:

  • When do rent reduction or termination rights mature? Often, colocation arrangements have a deadline and reduced rent and / or termination rights only apply after a certain number of months. But what if a roommate opens and then closes following an increase in COVID-19 cases?
  • What does it mean for a roommate to be open for the purpose of meeting the roommate provision? The language may vary from one lease to another. For example, a lease might specify that a roommate must be open and operate a retail business in almost all of their premises to be considered in the roommate test. What does this mean for businesses open for limited hours or engaged only in limited operations such as take-out or curbside collection?
  • Is there an operating agreement? Some colocation arrangements require the tenant to be open and operational in order to avail of the colocation arrangement. In some cases, even if there is an operating covenant, tenants may argue that force majeure provisions exempt the tenant from carrying on business. However, the landlord can argue that the operating requirement is a condition and that the colocation provisions simply do not apply if the condition is not met.
  • How does force majeure impact the analysis? Some landlords have argued that the force majeure provisions exempt them from “complying” with the roommate provisions. However, traditionally, the law has not treated colocation clauses as “commitments” or “obligations” that create a violation if not respected. In other words, the owner does not “promise” to meet the conditions; instead, these provisions simply establish contingencies and a “tiered rent structure”. See Old Navy, LLC v. Ctr. Dev. Oreg., LLC, CIV No. 3: 11-472-KI, 2012 WL 2192284, at * 11 (D. Or. June 13, 2012). Typically, force majeure provisions are written to excuse obligations to act, not the occurrence or non-occurrence of conditions. See San Mateo County. Coll. Dist. vs. Half Moon Bay Ltd. P’ship, 65 Cal. App. 4th 401 (1998) (force majeure clause which applied to “obligations” did not excuse breach of conditions); Jenkins v. Eckerd Corp., 913 So. 2d 43, 54-55 (Fla. Dist. Ct. App. 2005) (recognizing the disposition of the principal tenant as an express condition and refusing to excuse its failure).

Similar issues apply in disputes over sales exclusion clauses, which may provide for a right of early termination if a commercial tenant’s sales do not meet or exceed a certain threshold. For example: does the non-respect of the operating commitment affect the right of a tenant to exercise the exclusion of sales clause? If this is the case, the Tenants could argue that the absence of operation for any period can be excused by joint tenancy or force majeure provisions. The owners would likely argue that the operating requirement is a condition and that the referral of sales clause does not apply if the condition is not met, regardless of the roommate and force majeure provisions. .

Another important consideration is how sales are calculated. In order to determine what constitutes a sale that matters, when sales should be measured, and how closings affect sales launch thresholds, the first step is to carefully read and understand the language of the lease.

Many of these issues are starting to be addressed now, but have yet to result in published decisions. As COVID-related lease disputes continue to unfold, parties to commercial leases should carefully analyze these provisions and keep an eye out for future legal precedents.

Broke Millennial Author on Financial Mistakes Wed, 15 Sep 2021 20:12:33 +0000

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Millennials and their financial habits often make the headlines.

And while this generation is often ridiculed for their frivolous spending on oatmeal lattes and bottomless brunches, the truth is, Americans between the ages of 25 and 40 spend more on essentials – like housing, food. education, health and child care – than previous generations. These essential costs have increased in recent years, but wage growth has not kept pace.

So how can millennials be proactive about their finances while still recognizing that sometimes the cards are played against them? And what should they prioritize when trying to figure out where to put their limited resources?

Select spoke to Erin Lowry, author of “Broke Millennial Talks Money” and “Broke Millennial Takes On Investing” about the biggest financial mistake she sees millennials make and the steps they can take to help themselves. get back on track.

Why Aren’t Millennials Saving for Retirement?

The biggest financial mistake millennials can make is not saving for retirement, Lowry says.

Millennials frequently cite two reasons why they don’t put money aside for their future, she says. The first is not having enough surplus to put into retirement after they have covered essential costs and paid off any past due debt, such as student loans or credit card balances.

The other reason is that many don’t believe they’ll see a future because of existential threats like climate change, so they don’t see the point in saving for it, Lowry says. In fact, a 2021 Pew study found that nearly 70% of Gen-Zers and Millennials believe climate should be seen as “a top priority to ensure a sustainable planet for future generations.”

As Lowry sympathizes with millennials who fear climate change, she urges them to continue focusing on building a nest egg for retirement.

“You really guarantee yourself a personal financial apocalypse if you don’t prepare yourself,” Lowry says. “It is important to remember that previous generations faced extremely important world events and that we have always persisted.”

How Millennials Can Start Saving for Retirement

Whether you’re the first group of millennials who don’t invest because they don’t have enough money, or the second group who thinks saving for the future is futile, there are steps no matter what. that can take to develop a concrete investment plan for retirement.

For starters, Lowry recommends that you start by reviewing your budget to understand how much money you are making, how much you will need to cover your essential expenses, and how much you need to spend on paying down debt.

Once you have a sense of where your money is going each month, you can take action to prioritize your future. Lowry recommends that people start investing as much as they can and take advantage of their 401 (k) employer.

For example, if your employer is willing to contribute 4%, you don’t have to start by contributing 4%. You can start with 1% and work your way up, increasing every few months. By slowly increasing your contribution over time, you won’t see immediate and dramatic changes in your cash flow, Lowry explains.

If your employer doesn’t offer a 401 (k), you can open a Roth IRA (Individual Retirement Account) instead. With a Roth IRA, your contributions are taxed up front so you don’t pay tax when you start withdrawing money at age 65. (Learn more about how Roth IRAs work.) This is a good option if you plan to be in a higher tax bracket later in life.

Traditional brokerage houses like Charles Schwab and financial technology companies like Wealthfront offer IRAs with no minimum deposit, a variety of different investment options, and free resources that help you plan for retirement.

At the end of the line

If you’re looking for investment guidelines for retirement, Fidelity Investments recommends that you aim to save the equivalent of three times your annual salary at age 40.

But don’t panic if you’re not near that number. Saving for the future can be difficult, especially when you have so many competing expenses in the present. But it is also crucial. According to a 2019 TD Ameritrade study, nearly two-thirds of millennials (ages 23 to 38) surveyed said they needed to catch up on their retirement savings.

Yet millennials also have a bad reputation. They’re much better prepared than many people believe: On average, Millennials saved more money in their 401 (k) in 2018 than Gen-Xs in 2002.

While Lowry encourages people to start saving as soon as possible, she also urges millennials to be compassionate with themselves in the budgeting process, especially if they have faced a financial setback. major, such as the loss of a job due to the pandemic.

“Many of us don’t get proper financial education. We’re not taught to choose investments in our 401 (k). We aren’t taught to manage planning and saving for the future of business. a really practical way. ”she says. “We come of age and think that somehow we’re supposed to know all of this, and then we’re embarrassed to ask. It’s okay to ask. And it’s okay to admit that you don’t know. “

Editorial note: Any opinions, analysis, criticism or recommendations expressed in this article are the sole responsibility of the editorial staff of Select and have not been reviewed, endorsed or otherwise approved by any third party.

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Michigan Municipal Takeover: A Rational, Apolitical Response to Financial Distress, or Something Else? Wed, 15 Sep 2021 18:09:12 +0000

Source: Michigan News

Former Detroit Emergency Director Kevyn Orr speaks to reporters after his speech at the University of Michigan on March 25, 2014. Credit: Michigan Photography.

Six of Michigan’s 11 cities under state emergency management since 1990 have also seen their municipal drinking water systems undergo changes, the most common being rate increases, water cuts for non- payment and privatization of water services or infrastructure.

That’s one of the findings of a new study that used Michigan cases to assess the predictability and rationality of state municipal takeovers, as well as the consequences for utilities such as utility lines. potable water.

Municipal takeover policies are often presented by supporters as rational, apolitical and technocratic responses to municipal financial distress. But a University of Michigan researcher and two University of Toronto colleagues have found that a city’s level of financial distress is not a reliable predictor of the likelihood of a state takeover. , while the race and economic status of residents, as well as a city’s level of dependence on the revenue-sharing state, were better predictors.

The study was published online September 14 in the journal State and Local Government Review.

“Our results show that decisions about state takeovers in Michigan are not entirely, or perhaps primarily, driven by objective measures of financial distress. Cities with a larger black population and a greater reliance on state funding are more likely to be supported, ”said the study’s lead author. Sara Hugues, environmental policy analyst and assistant professor at the UM School for Environment and Sustainability.

Sara Hugues

“We are also finding that cities that have been the subject of buyouts are more likely to see changes in their drinking water systems, such as tariff increases and privatizations. Whether these models are the product of racial prejudice, flawed policy and implementation, or broader political motivations is a question that could be addressed in future research. “

The most notorious recent example of water supply system changes during a Michigan municipal takeover occurred in Flint, which was under emergency management when critical decisions about supply protocols The city’s water and water treatment facilities were taken, and where emergency managers were reluctant to public concerns about the safety of the city’s drinking water. For nearly 18 months, from April 2014 to October 2015, the town of Flint delivered inadequately treated Flint River water to residents, exposing thousands of people to high levels of lead and other contaminants.

The other 10 Michigan cities that were under emergency management between 1990 and 2017, and which were analyzed in the study, are Highland Park, Hamtramck, Three Oaks Village, Pontiac, Ecorse, Benton Harbor , Allen Park, Detroit, River Rouge and Lincoln Park. .

A growing number of cities in the United States are facing serious financial problems requiring state support, and at least 19 states have passed laws allowing municipal takeovers in financial distress. In Michigan, municipal takeovers occur under the authority of Public Law 436 of 2012, one of the broadest and most permissive state municipal takeover policies in the country.

To study the implementation and consequences of PA 436 and the laws that preceded it, the researchers used a mixed-methods approach. First, financial and demographic data helped them understand state takeover decisions. Second, an analysis of media coverage captured the effects of the takeover on municipal drinking water services.

The aim of the first analysis was to operationalize the financial stress measures described by the State of Michigan and to identify the broader set of cities that could theoretically have been the subject of emergency management, but which have not been.

The researchers also measured community characteristics beyond financial health, including reliance on state income sharing, the proportion of black residents, and the median household income, which may have increased the likelihood of cities being targeted for emergency management.

Hughes and his co-authors expected that at least one of the financial metrics used by the state, or a composite financial health score based on all metrics, would be able to identify the 11 Michigan cities that were the subject of a takeover.

Surprisingly, this was not the case. The composite financial stress score captured only 45% of these cities. But a city’s level of dependence on state revenue sharing captured 82% of takeovers, while the percentage of black residents and median household income correctly predicted 64% and 55% of takeovers, respectively.

“These findings support previous work challenging the technocratic and rational basis of state municipal takeover laws and highlighting the politics inherent in municipal takeovers, particularly the prejudices and structural challenges faced by black communities. and poor, ”the authors wrote.

The media coverage portion of the two-pronged study showed that Michigan cities that were subjected to emergency management were more likely to have changes to drinking water services than 10 Michigan cities also faced to financial difficulties that have not been submitted to emergency management.

Six of Michigan’s 11 cities under emergency management have seen their drinking water systems undergo changes that were implemented to save money or reduce expenses. In many cases, these decisions have resulted in poor water quality, unreliable service and increased water bills, researchers say. The 10 comparative cities did not experience such changes.

“Drinking water systems are vulnerable to budget cuts and fee increases that accompany the balancing style brought in by emergency managers,” said Hughes. Under the auspices of emergency management, such decisions are made without public participation.

The other authors of the study are Andrew Dick and Anna Kopec, doctoral candidates at the University of Toronto. The work was funded by a grant from the Social Sciences and Humanities Research Council of Canada.