Who should shoulder the cost of rent for stores shuttered by Gov. Baker's shutdown of "non-essential" businesses in March due to Covid-19? In a suit filed this week, the Gap argues its Coolidge Corner landlord should eat the expense - and be made to suffer damages for not doing so.
The Gap shut its store at 306 Harvard St. in Coolidge Corner and furloughed the staff there on March 19 - and did not make its April rent payment. After its landlord, a Wellesley real-estate concern called Brookline Investment, LLC, demanded rent, the chain did make two partial rent payments, but that wasn't good enough and it ordered the Gap to move out.
In its lawsuit, filed in US District Court in Boston, the clothing chain is asking a judge to declare that the landlord has some nerve demanding rent in the middle of a pandemic that forced the shutdown of many retail stores: It's asking for the judge to block any eviction, order the landlord to repay the partial rent of roughly $22,000 it did pay after April 1 and to order the landlord to change the lease to specifically call for similar rebates should the store be forced to close again due to the pandemic.
The Gap argues that its lease was for full use of the premises for a set number of months, and that it never would have rented the space, which it has occupied since 2000, at the rates it did if it had known it would be knocked out of business due to a global pandemic between March 19, when it shut the store to comply with one of Baker's orders, and June 8, when it was allowed to re-open, but under limits of how many people could be in the store at once.
These circumstances not only imposed severe and irreparable hardship on Gap, they frustrated the express purpose of the Lease and made the principal object of the Lease illegal, impossible, and impracticable. Thus, the subject Lease and applicable law nullified any obligation to pay rent from, at a minimum, mid-March through June 8, 2020, with future rent also potentially subject to such nullification, and entitle Gap to a refund of rent or expenses it paid in advance for March 2020 and requires that the Lease be modified as a matter of law.