No Evicting Tenant for Slight Delay in Curing Rent Nonpayment During COVID

What Happened: Bed Bath & Beyond (BB&B) didn’t provide the necessary sales records to verify its percentage rent payments, concluded the landlord’s auditor in the spring of 2017. The landlord didn’t talk to BB&B or otherwise follow up on the audit. Move ahead three years when, after not paying April and May rent due to the pandemic, BB&B offered full payment in June. But the offer came 10 days after the cure period of the lease had expired, and the landlord refused to accept it, choosing instead to evict BB&B for nonpayment of not only fixed rent in April and May but also percentage rent over the audit period.

Ruling: The Louisiana federal court dismissed the eviction suit.

Reasoning: Having said nothing about it for three years, it was too late to raise the audit records issue now. And the 10-day delay in offering the fixed rent to cure the April and May nonpayment did the landlord no harm and was “reasonable in light of the fact that notice of default was received at the height of an ongoing global pandemic that forced BB&B to shut its headquarters and operate the business remotely.”  

• Clearview v. Bed Bath & Beyond, Inc., 2020 U.S. Dist. LEXIS 160078