Tag: Litigation

Team Spotlight: Prince William Litigation Team

Posted on by The Land Lawyers

In this month’s Employee Spotlight we would like to highlight and congratulate the Prince William Litigation Team.

Congratulations to Garth Wainman and Matt Westover on their recent win in the Virginia Supreme Court and many thanks to John Foote for his guidance on this matter.

Last month Matt and Garth argued a case in the Virginia Supreme Court for Dumfries Triangle Volunteer Rescue Squad (DTRS), a volunteer EMS agency in Prince William County. When the Prince William County Board of Supervisors decided to terminate its contract with DTRS, the Board also attempted to dissolve their corporate status and directed DTRS to give its property, including real estate the Board valued at more than $1.6 million, to the County for free. When the Prince William Circuit Court concluded that the Board had the power to do so, Garth and Matt appealed the circuit court’s decision and the Virginia Supreme Court reversed and entered a final order in favor of DTRS.

Congratulations Garth, Matt, and John!

Garth M. Wainman

Garth represents local and regional businesses and focuses on a wide range of commercial transactions and litigation with an emphasis on guiding developers and contractors through complex real estate and financial matters as well as managing construction law contracts and business tort litigation in Virginia state and federal courts. Other areas of expertise include structuring mergers and acquisitions, commercial lease drafting and negotiations, and counseling business clients through employment, corporate, and partnership disputes. Garth has served as lead counsel in several complex construction and commercial cases throughout the region.

Matthew A. Westover

A native of Northern Virginia, Matt assists property owners and developers in zoning, subdivision, eminent domain, and other land use disputes in state and federal courts in Virginia, as well as domestic arbitrations. He also represents lenders, developers, and property owners in real property disputes involving title issues, easement and alley questions, condominium and property owners’ associations, landlord/tenant matters, and issues involving complex real estate transactions. In addition, Matt assists clients in obtaining administrative approvals such as Alcoholic Beverage Control permits, appealing administrative decisions, trusts and estates litigation, and drafting documents for the acquisition, finance, and sale of real property.

John H. Foote

John’s practice focuses on obtaining land use approvals and governmental permits through legislative, administrative, and judicial processes. He is experienced in all relevant areas affecting land including federal regulations of wetlands and waters of the United States, the state regulation of Chesapeake Bay Preservation areas and storm-water management, and historic preservation. John has also represented property owners in boundary adjustments and other municipal matters, and has extensive background in local and state government administration. As an experienced litigator in both state and federal courts, John has appeared as counsel of record in a broad range of complex matters, and has argued numerous appeals to the Virginia Supreme Court and the U.S. Court of Appeals, Fourth Circuit. John served as Deputy County Attorney for Prince William County, Virginia, from 1977 until 1982 when he became the County Attorney. In both positions, he advised the Board of County Supervisors with respect to all matters, including land use, and was its chief litigator. Since 1989, he has represented many clients in land use matters before the governing bodies and subsidiary boards of more than two dozen Virginia jurisdictions and numerous state agencies. John has written extensively in the area of land use and local government and is the author of the principal Virginia text on Planning and Zoning in the Commonwealth.

Emergency Legislation Passed in Response to the Virginia Supreme Court’s Decision in The Game Place

Posted on by The Land Lawyers

On February 13, 2019, Governor Northam signed into law legislation that eliminates the potential adverse consequences of the Virginia Supreme Court’s 2018 decision in The Game Place, L.L.C. v. Fredericksburg 35, LLC and that should have landlords and tenants breathing a sigh of relief. In that case, the Court held that a lease for a term longer than 5 years must be sealed or in the form of a deed in order to comply with Virginia’s Statute of Conveyances (Virginia Code § 55-2). A lease that did not comply with that statue could be repudiated by either the landlord or tenant, regardless of how long the parties had operated under the mistaken belief that their written lease was valid, creating an implied tenancy based on the manner in which rent was received (usually a month-to-month tenancy). The Court’s decision sent landlords and tenants scrambling to review their leases to determine whether they complied with the Statute of Conveyances. In many cases, they did not and parties began negotiating lease amendments to resolve the issue.

Legislation was introduced this year to address the consequences of The Game Place decision. The new law amends several provisions of the Virginia Code, including the Statute of Conveyances, and eliminates the need for a lease for more than 5 years to be sealed or in the form of a deed. The law applies not only to new leases, but also to existing leases that had not been repudiated by either party. If an existing noncompliant lease had not yet been repudiated by either the landlord or tenant, they have likely lost their ability to do so under the new law. Because of the number of leases potentially affected by the Court’s decision, the General Assembly concluded that an emergency existed and made the law effective immediately upon the Governor’s signature.

If you have any questions regarding the legislation and its impact on a specific lease, please contact Matt Westover at (703) 680-4664.

The full text of House Bill 2287 can be found here.

Employee Spotlight

Posted on by thelandlawyers
Michael Kalish, Litigator

A native of Fairfax County, Michael currently resides in the greater Herndon area. He graduated from Virginia Tech with a degree in finance and thereafter matriculated to Seton Hall University’s School of Law. After law school, Michael obtained a position as a law clerk to Judge LeRoy Millette of the Circuit Court of Prince William County. As clerk to Judge Millette, he was exposed to the inner workings of the court system and was given the daily opportunity to witness trial presentations and oral arguments. Michael believes this experience was invaluable in his career as an attorney as it provided an immediate education of practical legal knowledge.

In 2007, at the conclusion of his clerkship, Michael was offered a position at Walsh Colucci where associate attorneys are given the immediate opportunity to work directly with clients and have a meaningful effect on litigation matters. Since joining the firm, Michael has worked primarily with the firm’s litigation, business dispute resolution, and commercial transaction practice groups representing businesses, non-profit organizations, and individuals. Michael has representative experience with commercial and complex litigation in the state and federal courts of Virginia, general corporate representation, construction disputes, real estate, zoning and other real property disputes, and transactional work. In January 2014, Michael was named a Shareholder of the firm.

The Land Lawyers: Are you from this area? And if not, where did you grow up?

Michael Kalish: I was born in Alexandria and raised in McLean. I went to McLean High School. Aside from three years at law school in New Jersey, I’ve always lived in Virginia.

TLL: What interested you about the legal field?

MK: I never really thought about law school until I took a business law class as part of my course work at Virginia Tech. That was my first exposure to reading actual case opinions and writing argument briefs in support of a position. I enjoyed the research and writing component and the argument presentation required by that class. I figured that if law school was anything like that course, then it was something I was interested in pursuing.

TLL: Are you involved in any community organizations?

MK: I currently serve as pro bono counsel and a director on the Prince William County Chamber of Commerce’s Board of Directors. I also a volunteer as a t-ball coach for my kids’ youth league teams.

TLL: You work primarily with the firm’s litigation, business dispute resolution, and commercial transaction practice groups. Explain what type of issues you handle.

MK: Many, if not all, of the matters I work on involve some aspect of a property rights or contractual claim, or assisting individuals and businesses avoid them. Attorneys with litigation experience have the benefit of imagining the worst-case scenario in many circumstances. I try to apply that experience to the transactional matters I assist with as well. With respect to my litigation case load, those matters tend to involve claims upon ownership or use of real property, or contract claims between vendors and owners, or businesses and their trade counterparts or employees. No matter what the nature of the dispute, though, the first question I always ask is: What is your goal in resolving this dispute?

TLL: How long have you been working for the firm?

MK: It will be 10 years in August 2017.

TLL: Aside from a very busy schedule, what do you do for fun?

MK: With my kids’ ever heavier sports and social schedules it is tough to get out much. But when I can, I enjoy racquetball, all Virginia Tech Hokies sporting events, and getting out to new restaurants, breweries, and vineyards across Northern Virginia with my wife, Kate.

TLL: Do you have a hero or heroine?

MK: William M. Gaines.

TLL: What is your favorite meal?

MK: Lasagna. This, by definition, means meat lasagna with spicy sausage and peppers, garlic, onions, and ricotta cheese. Never allow someone to pass off a multi-layered pasta dish with a primarily vegetable filling as lasagna and never, ever, include mushrooms. Mushrooms are a fungus, not a food.

TLL: What part of the world would you most like to visit?

MK: I’d like to go to Nice, France, and see the French Riviera.

TLL: Why do you think Walsh, Colucci, Lubeley & Walsh is a great place to work?

MK: When I interviewed, Garth Wainman gave me a “no jerks” guarantee. He was, and remains, 100% correct. There are no jerks who work for Walsh Colucci. Resolving disputes and carrying other people’s flags into battle can be difficult and stressful, but having respect for and enjoying the people you work with makes it a lot easier.

We are often presented with disputes that require us to theorize the potential outcomes of strategies and press us to consider novel arguments and positions. Having the freedom to engage in those debates with colleagues knowing that we each respect each other enough to realize the best answer may not be your own is an atmosphere that generates both a positive work environment and the best chance of success for our clients.

TLL: Thank you, Michael!

Employee Spotlight

Posted on by thelandlawyers
Garth Wainman, Litigator
Fishing for stripers on Cape Cod

Garth is recognized by U.S. News and World Report as one of The Best Lawyers in America©, was named a 2016 Top Rated Lawyer in Construction Law by American Lawyer Media, and has earned a reputation as an effective, diligent, down-to-earth counsel when it comes to complex business disputes—from construction sites to boardrooms. Garth has represented national and regional companies in many industries and has successfully defended his clients from claims of breaches of condominium warranties, structural design defects, delay damages, bond defaults, and myriad complex business torts.

The path to law school took Garth on a roundabout journey playing Division III basketball at Trinity College in Connecticut, playing keyboards in a coffeehouse band, and selling Pringles all over New England for Procter & Gamble. But once he set his sights on the American University Washington College of Law, the route to practicing law in Northern Virginia was straight and narrow. Garth began his career at Hazel Beckhorn and Hanes, now Reed Smith, and since then has been consistently recognized by his colleagues, peers, and legal organizations for his effective work as a business problem solver using litigation, only when necessary, as a means to an end.

The Land Lawyers: What types of cases do you focus on?

Garth Wainman: While our firm is known as a leader in land use and development throughout Virginia, I have worked to build a vibrant business and commercial litigation practice. The firm is blessed with a number of excellent lawyers who understand our clients want sound, practical advice that gets their deals done. As a registered agent and counsel to more than 50 local and regional businesses, I am fortunate to work with some marvelous entrepreneurs and help them through the phases of building their businesses, increasing their workforces, and succession planning so that the next generation can inherit vibrant successful companies.

While our real estate clients need assistance with everything from acquisition, construction contracting, permitting, disputes with localities, contractor problems, and mechanics liens, sales or leasing—our non–real estate business clients look to us to help them with drafting organizational documents, form contracts and employment agreements, and related labor issues. A specialty we have developed is the drafting and enforcement of non-compete and non-solicitation agreements. These agreements, if not drafted correctly, can spawn considerable litigation and expense. We routinely review and update these agreements and company employment manuals for our clients to help them avoid the common problems that may arise under both. You can read more about these agreements in an article I wrote for this month’s newsletter.

TLL: You also work with businesses on commercial transactions and complex real estate and financial matters. Explain what type of issues you handle?

GW: For many years I represented several regional banks handling work-outs with their commercial borrowers. I was able to identify resolutions and renegotiate outstanding debt. Commercial leasing is another area of our expertise. Tenants will often accept a landlord’s form lease without knowing which protective clauses to include. Leases are often one of the largest long-term debt obligations for a commercial tenant and they need an experienced negotiator on their side. I firmly believe that meeting with an experienced attorney prior to signing a lease is an investment that pays off in the long run.

TLL: Last year, you were featured in American Lawyer Media’s 2016 Top Rated Construction Lawyers. Tell us about your work over the years in relation to this recognition.

GW: Many years ago, when Cellar Door Productions wanted to build a music amphitheater in Haymarket, my partner, John Foote, handled the zoning. During construction of Jiffy Lube Live, approximately one-third of the earthen berm—the largest one on the East Coast—slid down the hill during a rain storm. I was hired to negotiate the rebuilding of the pavilion and successfully litigated the case to a result that covered my client’s costs and then some.

In 1997, the David and Lucille Packard Foundation purchased a defunct underground Cold War bunker, known as Mount Pony in Culpeper, Virginia, with plans to convert it into a storage site that would house a vast collection of movies, television shows, and recordings from the Library of Congress. The renovation of the underground bunker also included the incorporation of a green roof system that eventually failed. I was hired to represent the Packard Foundation. Through a series of successful motions and prudent mediation, a resolution was reached, the green roof was rebuilt, and the foundation continues on with its philanthropic work.

TLL: Aside from a very busy schedule, what do you do for fun?

GW: For many years, I was lucky enough to coach both my son and daughter on their baseball, softball, and basketball teams. These days, I try to play tennis a couple times a week and making time to play the piano and guitar remains a constant pleasure.

TLL: What are your favorite things to do?

GW: My passion is fishing, and because I grew up going to beaches on Long Island Sound, I have tried to live near the water most of my life. These days, I live in Belmont Bay, on the Occoquan River, where I enjoy my kayak and fishing for the elusive snakehead, an invasive species from Asia that is an excellent game fish and makes an even better dinner. When I can get away, I head for the Florida Keys to snorkel and fish for spiny lobster and other game fish.

TLL: Why do you think Walsh, Colucci, Lubeley & Walsh is a great place to work?

GW: Simply put, we hire intelligent well-rounded attorneys with the work ethic and drive to become our partners. We often spend 10-hour days together, so it certainly helps if you like being with one another. When a firm hires bright and thoughtful people, and provides the necessary mentorship and challenging work, it becomes a firm that people want to join and develop their careers. We have established strong friendships and relationships with our colleagues and clients over the years, and it is rare that anyone leaves. That means we are doing something right!

TLL: Thank you, Garth!

Employee Spotlight

Posted on by thelandlawyers
Source: Susan Lynch

Back in the 1970’s, growing up in a wooded neighborhood in Tysons Corner, John never imagined he would become an attorney. He imagined himself as a musician, but John’s father, who worked in the construction and development business, told him he needed to make an honest living. Hoping to buy time before committing to a career, law school seemed like a good option. Without having to sacrifice his music, John’s decision paid off.

One might assume that having a father (and a grandfather) in the construction and development business, John would have jammed to the beat of their drums. And, as a Land Lawyer, you might say that he has, except John is no ordinary Land Lawyer. John Rinaldi is a litigator who focuses on real estate title issues, construction and development, and larger business issues such as assisting foreclosure purchasers and lenders in the process of foreclosing. John’s article in this month’s Land Sense is about lender foreclosures, but we’re here to talk to him about his practice and his music.

The Land Lawyers: What types of cases do you focus on?

John Rinaldi: Litigation involving real estate title issues – and there can be a lot of them, title insurance, mechanic’s liens, and other business-related real estate issues. I also work on zoning issues and recently won a case concerning a subdivision by-right. You can read about that here.

TLL: This month, you wrote an article on homeowner’s challenging foreclosure. Have you seen a decline in foreclosures since the housing bubble burst in 2007?

JR:  There was a huge increase in the number of foreclosures after 2007 that has only recently, over the past few years, appeared to be subsiding.

TLL: Who is, and is not your typical client in a foreclosure case?

JR: We assist lenders in the process of foreclosing, and lenders with properties that have issues that make it difficult to foreclose. We also represent foreclosure purchasers, and foreclosure purchasers who are having difficulty with the prior owners. We do not represent homeowners facing foreclosure.

TLL: When does a lender or foreclosure purchaser typically involve you in the process?

JR:  Every case is different depending on the parties and properties involved.  We have had a lot of cases recently in which the local counties have tried to limit the ability of lenders to foreclose on properties identified as Affordable Dwelling Units.  We also often see cases in which there are errors in the deed of trust.  Also, we see quite a few foreclosed owners that want to challenge the validity of the foreclosure.

TLL: Your clients think of you as a rock star litigator but do they know that you really are a rock star? Tell us about your band, Larry & The Land Lawyers, and when you first got interested in music.

JR: I got interested in the trumpet in fourth grade, but wanted to learn a second instrument when I got into high school.  There were tons of guitar players in my school but there weren’t as many bass players, so I picked up the bass guitar and improved my odds of getting into a band by simple supply and demand. Besides, I am not nearly coordinated enough to play guitar.

I played in a few bands in college and law school and met a drummer, Larry Clark, through mutual friends.  In 1993, I joined the firm and met Mark Goetzman, a Land Lawyer who also plays guitar and sings.  Years later, Larry introduced me to guitarist Mike Kieffer before he went to law school and before he became a Land Lawyer. The three of us played together a few times a year with other friends just for fun. It’s actually Larry’s fault that Kieffer ended up working for the firm—I mean that in a good way!—and without Larry there would be no Larry & The Land Lawyers.

TLL: How did you become rock stars?

JR: One of our many gigs included playing the Walsh Colucci holiday party and other firm events. A few years ago, Mike found out about a battle-of-the-law-firm-bands fundraiser to benefit Gifts for the Homeless and we participated in the fundraiser every year since. This past year, because of a scheduling conflict, we were given the opportunity to participate in the 2nd Annual Law Rocks fundraiser at the 9:30 Club. We played on the same stage as the Ramones, Psychedelic Furs, R.E.M, Cyndi Lauper, Marshall Crenshaw, Root Boy Slim, and the list goes on. We played for HomeAid Northern Virginia and the event set a one-night record, raising more than $115,000 for charity.

It was a great night. You can read about it here, and here, and watch our performance here.

TLL: Aside from preparing briefs and jamming with The Land Lawyers, what else do you like to do in your spare time?

JR:   Sailing and fishing.

TLL: Do you have a hero or heroine?

JR:  My father and both of my grandfathers.

TLL: A favorite meal?

JR: A big pile of Chesapeake Bay blue crabs.

TLL: Why do you think Walsh, Colucci, Lubeley & Walsh is a great place to work?

JR: The collegial atmosphere, everyone here is great to work with.

TLL: One final question. Do you still play the trumpet?

JR: No, but I can play the ukulele.

TLL: Thank you, John!

Litigators Andy Burcher and Matt Westover Win Zoning Challenge

Posted on by Matthew Westover
Image courtesy of La Bergerie
Image courtesy of La Bergerie

Representing Janow, LLC, the owners of La Bergerie, a fine dining French restaurant in historic Old Town Alexandria, the litigators successfully defended a suit brought by neighbors challenging the City Council’s approval of the restaurant’s proposed relocation.

In July 2014, Janow and its principals, Margaret and Laurent Janowsky, proposed relocating La Bergerie from its current location in the Crilley Warehouse to 329 North Washington Street. In addition to the restaurant, Janow proposed to operate a small inn at the new location. Janow needed various zoning approvals from the Alexandria City Council, and with the assistance of Walsh Colucci’s Cathy Puskar, filed three interrelated land use applications to rezone the property and obtain a special use permit for the new uses. After obtaining a unanimous favorable recommendation from the Alexandria Planning Commission, on October 18, 2014, Janow received unanimous approval from the Alexandria City Council.

A group of neighbors who lived near the proposed new location, however, filed a lawsuit in the Alexandria Circuit Court challenging the City Council’s decision. The complaint alleged, among other things, that the decision was arbitrary, capricious, and unreasonable, and amounted to illegal spot zoning under Virginia law. The plaintiffs claimed that the City Council’s approval “was the product of a sham proceeding” and “stemmed from multiple procedural and substantive violations of Virginia law, the Charter of the City of Alexandria, the City of Alexandria Zoning Ordinance, and the relevant deliberative bodies’ own prescribed rules.” The plaintiffs further contended that the City Council failed to consider the merits of the application, but rather voted “to confer a substantial financial benefit on a politically-connected family,” because Margaret Janowsky is the daughter of former Alexandria Mayor and Virginia State Senator Patricia Ticer.

Andy Burcher and Matt Westover defended Janow in the litigation. After more than a year and a half of pretrial maneuvering, the trial finally began on May 31, 2016. Over the course of the next three days, the Alexandria Circuit Court heard testimony from numerous witnesses and reviewed hundreds of pages of exhibits, during which the litigators poked holes in the plaintiffs’ claims.

The court took the matter under advisement until October 31, 2016, when it issued a 14-page letter opinion that rejected the neighbors’ claims in their entirety and concluded that the “City Council’s actions were reasonable and not arbitrary and capricious and did not constitute spot zoning.” The court agreed with Janow’s position that the principal case relied on by the plaintiffs was distinguishable from Janow’s case and that the perceived procedural issues they complained of did not render the City Council’s decision invalid. Having rejected the procedural, or “Renkey” issues, the court applied well-established Virginia law that the City Council’s decision was entitled to a presumption of validity and was subject to the “fairly debatable” standard. The court also agreed with Janow that the City Council’s decision did not constitute illegal spot zoning because the relocation of La Bergerie would benefit the entire City in numerous ways including promoting the expansion of a locally owned small business, protecting a building of historic and architectural value, and encouraging tourism.

Although the court’s decision could be appealed to the Virginia Supreme Court, it clears a major hurdle for La Bergerie’s proposed relocation to move forward.

Litigators Andy Burcher and Matt Westover Win Zoning Case

Posted on by thelandlawyers

Rettig vs City of Alexandria

Representing Janow LLC, the litigators defended the owners of La Bergerie, a restaurant located in the City of Alexandria’s historic Old Town in a suit brought by neighbors challenging the City Council’s approval of the restaurant’s proposed relocation. After a three-day trial, the judge ruled in favor of La Bergerie and the City Council, clearing the way for the restaurant’s relocation. Read the opinion here: Rettig-vs-City-of-Alexandria

Virginia Supreme Court Decision Provides Guidance on Conservation Easement Restrictions

Posted on by thelandlawyers

Arlington, VA — In an opinion issued today, the Virginia Supreme Court upheld the decision in Wetlands America Trust v. White Cloud Nine Ventures, LP, related to the construction and interpretation of conservation easements in Virginia. Attorneys Andrew Burcher and Michael Kalish of Walsh, Colucci, Lubeley & Walsh, P.C., represented the defendant, White Cloud. This important decision is the first to offer guidance to owners of property subject to a conservation easement on how to construe restrictions on the use of their property.

Consistent with the position taken by Walsh, Colucci, Lubeley & Walsh and its client, the Supreme Court ruled that conservation easements are subject to the same strict interpretation rules as restrictive covenants. The burden lies on those who seek to enforce them, who must show a clear violation of the easement, and any ambiguity is interpreted in favor of the free use of property.

Shareholders Andrew Burcher and Michael Kalish work primarily in the firm’s litigation and commercial business transactions practice. They have represented numerous businesses, non-profits, and individuals in a variety of complex commercial transaction cases, bankruptcies, and corporate matters in state and federal courts in Virginia. For more information about Wetlands v. White Cloud Nine, please contact Andrew Burcher or Mike Kalish at 703.680.4664.

Detailed Lease Provision Trips Up Tysons Corner Landlord Causing Loss of Anchor Tenant

Posted on by Andrew Burcher

Aerial ImageOn January 13, 2015, the Fairfax Circuit Court ruled that a Tysons Corner landlord was in violation of a co-tenancy provision in a 24-year old lease provision requiring “quality retail establishments which sell the highest quality good and which are ‘luxury’ tenants selling premium brands.”  The ruling in Fairfax Square LLC v. Hermes of Paris, Inc. (Case No. 2014-06509), provides a cautionary tale to landlords and a good lesson for tenants about using specific examples in lease negotiations.

The case was brought by the landlord after Hermes, an anchor tenant since the mall opened in 1990, sent a notice of default of the co-tenancy provision. Hermes complained that certain new tenants, including USAA Bank, high-end appliance seller Miele, and local jeweler Liljenquist & Beckstead, were not “luxury” tenants and counterclaimed seeking a declaration that landlord was in default.

The court analyzed the co-tenancy provision as a restrictive covenant and required Hermes to prove the restriction. Under the precedent of Scott v. Walker, 274 Va. 209 (2007), the court construed the restrictive covenant against Hermes and resolved any ambiguity in favor of the free use of land. The court ruled that the co-tenancy provision contained latent ambiguities and permitted parole evidence supporting the parties’ positions, including interpretation of what the references to “Tiffany, Fendi and Gucci” meant. The court ultimately determined that the new tenants were not “luxury” tenants on the same scale as Tiffany, Fendi, and Gucci and found the landlord in default allowing Hermes to terminate the lease prior to the end of the 2020 term.

In Virginia, residential leases are governed by the Virginia Landlord Tenant Act, but Virginia law imposes few statutory requirements on commercial landlords. Instead, the relationship between commercial landlord and tenant is governed strictly by the terms of the lease subject to traditional contract law principles. Because Virginia procedure provides that commercial lease disputes arising through an unlawful detainer action may be decided in the General District Court, a court not of record, the vast majority of lease disputes do not result in reported opinions from either the Virginia Supreme Court or the local Circuit Court. Most of these types of lease disputes involve a tenant’s inability or failure to pay rent, how and when a tenant will vacate the premises, and ultimately how much a defaulting tenant will owe its landlord. Accordingly, the decision in Fairfax Square v. Hermes provides a framework for practitioners who draft commercial leases to better understand how a court might interpret the non-monetary provisions of a lease. Under its guidance, landlords should be careful to avoid detailed examples that, if not met, would allow a tenant to terminate a lease early without penalty. Likewise, tenants should push for detailed specific examples that, if not met, can provide a justification for claiming a non-monetary default by a landlord.