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On April 1, 2020, Ohio Governor Mike DeWine signed <a href="https://content.govdelivery.com/attachments/OHOOD/2020/03/09/file_attachments/1396418/Executive%202020-01D.pdf">Executive Order 2020-08D</a> (the “Order”), which goes into effect immediately and aims to provide economic “breathing room” for small business commercial tenants and commercial real estate borrowers. While it is titled as an Order, its legal effect is only a “request.” The Order does not create absolute obligations, but rather encourages the parties to find sensible solutions regarding rent and mortgage payments due to the COVID-19 crisis.

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The Order complements the <a href="https://www.supremecourt.ohio.gov/coronavirus/resources/localCourtGuidance03.20.20.pdf">Ohio Supreme Court’s guidance</a> to lower courts issued on March 20, 2020 (the “Court Guidance”) regarding the temporary continuance (i.e., suspension) of eviction filings, eviction proceedings, scheduled move-outs, and the execution of foreclosure judgments.

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The Court Guidance directs state courts to continue (i.e., suspend) all eviction and foreclosure filings and stay all pending eviction and foreclosure proceedings until the COVID-19 crisis has abated. Thus, while the Order does not legally stay a landlord or lender from enforcing its contractual rights, neither party can seek redress from the state courts for a breach of such contract until the Ohio Supreme Court’s guidance is lifted. In addition, the statute of limitations in Ohio for all actions that were set to expire between March 9, 2020 and July 30, 2020 have been tolled.

Following up on the Court Guidance, which prohibits the filing of eviction and foreclosure proceedings as set forth above, the Order seeks to provide some intended relief for small business commercial tenants and commercial real estate borrowers and promote an orderly resolution of potential tenant and borrower disputes.

Rent Obligations

The Order requests that Ohio commercial property owners (i.e., landlords), whose properties are occupied by small business commercial tenants facing financial hardship during the COVID-19 crisis, suspend all rental payments from such tenants for at least 90 consecutive days. The Order does not require or force owners to offer rent relief to their tenants. Further, the Order does not excuse tenants from meeting their rental obligations. Nothing in the Order restricts landlords from collecting unpaid rent at some “future time.” The Order does not define “small business commercial tenants,” but leaves open the interpretation of that term.

Tenant Evictions

Additionally, the Order requests that landlords provide a moratorium on evictions of small business commercial tenants for at least 90 consecutive days. The Order, however, does not prohibit a landlord from issuing notices of default and/or notices of intent to bring an action for eviction for failure to pay rent or arranging alternative solutions.

For commercial mortgage loans backed by property located in Ohio, the Order requests that lenders provide forbearance to borrowers facing financial hardship during the COVID-19 crisis for a period of at least 90 consecutive days. “Lender” is defined broadly in the Order to encompass most banking or mortgage organizations. As used in the Order, “forbearance” refers to an agreement wherein the lender would agree to refrain from the following: (a) enforcement of legal remedies following any monetary or non-monetary default by the borrower under the mortgage loan; (b) seizure of cash from borrower; or (c) requirement of borrower to waive legal rights or admit to default under the mortgage loan.

The Order does not excuse borrowers from meeting their mortgage loan obligations. Rather, the Order encourages lenders and borrowers to “pause” and work out “sensible solutions” relating to agreed upon deferred mortgage loan obligations.

As a result of social distancing measures enacted by local, state and federal authorities during the COVID-19 public health crisis, many businesses across Ohio have ceased operations, resulting in a cash flow crisis throughout the economy. The Order aims to encourage landlords and lenders to work with tenants and borrowers during a 90-day period until social distancing measures are removed and the economy improves. Subject to the foregoing, however, lenders and landlords remain free to enforce existing contracts in accordance with their terms, and the parties are free to modify contracts as they may mutually agree.

Thomas J. Coyne 216.566.5781 <a href="mailto:Thomas.Coyne@ThompsonHine.com">Thomas.Coyne@ThompsonHine.com</a>

Richard A. Freshwater 216.566.5764 <a href="mailto:Richard.Freshwater@ThompsonHine.com">Richard.Freshwater@ThompsonHine.com</a>

Patrick Abell 216.566.7978 <a href="mailto:Patrick.Abell@ThompsonHine.com">Patrick.Abell@ThompsonHine.com</a>

Additional Resources

We have assembled a firmwide multidisciplinary task force to address clients’ business and legal concerns and needs related to the COVID-19 pandemic. Please see our <a href="https://www.thompsonhine.com/services/covid-19-task-force">COVID-19 Task Force</a> page for additional information and resources.

This advisory bulletin may be reproduced, in whole or in part, with the prior permission of Thompson Hine LLP and acknowledgment of its source and copyright. This publication is intended to inform clients about legal matters of current interest. It is not intended as legal advice. Readers should not act upon the information contained in it without professional counsel.

This document may be considered attorney advertising in some jurisdictions.

Ohio Report: COVID-19 Relief for Commercial Tenants and Borrowers

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