On April 1, 2020, Ohio’s Governor issued Executive Order 2020-08D, a copy of which is linked here. Issued pursuant to the Governor’s implied police powers to address the economic impact of COVID-19, the Executive Order requests that commercial landlords and their lenders (including their servicers) take certain steps to provide relief to small business commercial tenants and commercial real estate borrowers.

SUMMARY OF EXECUTIVE ORDER 2020-08D

The Executive Order is framed as a “request” that commercial landlords and lenders take certain actions–not an order commanding that they do so. Further, the Executive Order does not suspend any federal or state law.

With respect to small business commercial tenants, Ohio landlords are requested to: (1) suspend rent payments for at least 90 days for those facing economic hardship as a result of the COVID-19 pandemic; and (2) refrain from evicting such tenants for at least 90 days. The tenants are not relieved of their rent obligations, and landlords are not prevented from later recovering this rent from the tenants.

Lenders, including their servicers, are requested to provide commercial real estate borrowers whose loans are secured by properties in Ohio with the opportunity for a forbearance term of at least 90 days as a result of the financial hardship caused by the COVID-19 pandemic. In connection with that forbearance, lenders are requested:

  • Not to enforce any remedies against commercial real estate borrowers for any default caused by the COVID-19 pandemic, including by filing suit against borrowers or guarantors, filing a foreclosure action, having a receiver appointed, or impounding funds deposited in accordance with any loan documents;
  • To refrain from sweeping or seizing cash by reason of a cash sweep trigger event arising as a result of the COVID-19 pandemic; and
  • Not to require commercial real estate borrowers to waive their rights or admit a default arising as a result of the COVID-19 pandemic in forbearance agreements.

The Executive Order explicitly states that it does not negate the obligations of a commercial real estate borrower, but rather is intended to “provide a pause and time for sensible solutions to be worked out among commercial real estate borrowers and lenders[.]”

THE BROAD IMPLICATIONS OF EXECUTIVE ORDER 2020-08D TO LENDERS

As noted above, the Executive Order is careful to state that lenders are requested to provide forbearance agreements as delineated therein. Whether Ohio could legally require lenders to provide the relief described in the Executive Order without violating the Contracts Clause of the United States Constitution–which prohibits states from passing laws impairing contractual obligations–remains to be litigated. United States Supreme Court caselaw suggests that, due to the health risks and economic impact caused by the COVID-19 pandemic, Ohio’s use of its police power to order lenders temporarily either to take or refrain from taking certain actions for a limited period of time might withstand constitutional scrutiny.

Nonetheless, a lender’s failure to make a good-faith effort to abide by the requests in the Executive Order presents risk.  Courts likely would be loathe to allow a lender to enforce its rights to foreclose on collateral, or take control of a borrower’s cash, during the COVID-19 pandemic. Further, a lender risks regulatory scrutiny, adverse publicity, and reputational harm if it does not abide by the Executive Order’s requests during this national emergency.

Our initial impressions of the practical impact of the Executive Order are:

  • The Executive Order is directed at defaults that are expected to arise from the economic impact of the COVID-19 pandemic–not pending foreclosures or evictions, most of which are already stayed by court orders.
  • Many loans are already subject to cash management or sweeps that were previously implemented for reasons unrelated to the COVID-19 pandemic. The Executive Order does not state that these must be terminated or stayed. Rather, the Executive Order requests that a lender forbear from sweeping or seizing cash as a result of circumstances caused by the pandemic.
  • With respect to properties already in receivership, the Executive Order does not require that control of these properties be returned to the borrower.
  • With respect to new defaults that occur during the pendency of the pandemic, the Executive Order does not prohibit a lender from sending a notice of the default with a reservation of rights, though a lender should carefully consider, and obtain legal advice regarding, whether to accelerate the loan while the Executive Order remains in effect.
  • Unless there are life safety issues at the property or for the tenants, Lenders should carefully consider the potential adverse impact of filing new foreclosure actions, or seeking the appointment of a receiver, for defaults arising as a result of the pandemic.
  • Many lenders will be negotiating forbearance agreements with commercial loan borrowers facing economic difficulty in the wake of the COVID-19 pandemic. Such agreements typically contain a borrower’s waiver of its rights and admission of the default giving rise to the forbearance agreement. The Executive Order requests that lenders not require such provisions if the default arises as a result of the COVID-19 pandemic. In light of the Executive Order, lenders should carefully consider, and obtain legal advice regarding, whether to include such provisions in their forbearance agreements, and how to tailor them, especially if the default is attributable to the economic impact of the COVID-19 pandemic.

The Ohio Executive Order presents issues that affected commercial landlords and their lenders must carefully evaluate as they address the economic consequences of the COVID-19 pandemic.

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