Connecticut business successfully uses COVID as defense in court

FAIRFIELD — A Southport business successfully used the impact of COVID-19 as a defense in court after its landlord sought to terminate its lease.

“It started out as your run-of-the-mill landlord-tenant commercial eviction case,” Aaron Romney, one of the lawyers for Wafu Asian Bistro, said.

Romney, a lawyer at Zeisler & Zeisler, P.C., said the Bridgeport Superior Court’s decision allowed the tenant to fully pay back the approximately $100,000 owed in rent. He said the impact of COVID-19 drove the court’s decision.

In the decision, Judge Walter Spader Jr. agreed that this situation was unique to the defendant and the business due to the pandemic. He also said more than 600 Connecticut restaurants have closed.

“If the Court can attempt to limit this crisis by one business, it is going to try,” he wrote.

Romney said the decision stems from “equitable nonforfeiture,” which is part of old common law and has informed most state laws.

“What that doctrine says generally, in English, is if the tenant defaulted under a lease, and the landlord terminated, if the tenant can show that their actions were not willfull or grossly negligent, then the court can reinstate the lease under (the doctine),” Romney said.

Romney said it essentially means it is not fair to take away the tenant’s lease under these circumstances.

“A lease is very valuable to a business,” he said. “If you lose it, in many case you lose your business.”

Romney said the caveat is that is has long since been established that economic hardship does not constitute grounds for equitable nonforfeiture — being used if, hypothetically, a tenant made a mistake.

He said the court recognized that, distinguished this case from any other hardship pre-coronavirus and pointed to the fact that the pandemic caused hardship beyond the restaurant’s control.

“Non-specific to the tenant,” Romney said. “So, it’s not their bad luck. It was everyone’s bad luck.”

Romney pointed out that Gov. Ned Lamont’s executive orders prevented the restaurant from operating how they normally would since March.