From [HERE] A recent Oklahoma Supreme Court decision may make it more difficult for a landlord to prevail, at least in the early stages, of a forcible entry detainer or other action seeking to evict a tenant and to recover for past-due rent. In a split decision marked by a pointed dissent, the court majority held that a tenant may assert the affirmative defense of impossibility of performance, even in the face of contrary provision in the parties’ lease. The Supreme Court then remanded the case to the district court to allow the defendant to present evidence of impossibility.

The tenant in Meng v. Rahimi leased a commercial property for the sole purpose of operating a massage business. The lease prohibited the tenant from using the property for any other purpose or for any purpose that could endanger life. The tenant’s owner closed the business in March 2020 after she and her sole employee became ill with COVID-19 symptoms. The tenant stopped paying rent and the business never re-opened.

When the landlord filed a forcible entry and detainer action, the tenant argued its performance under the lease was made impossible by the public health risk associated with massage, and thus, payment was excused under the doctrines of frustration of purpose or impracticability. The district court, relying on language in the parties’ lease,[1] declined to allow the tenant to present evidence in support of the impossibility defense and granted possession of the premises and damages for unpaid rent to the landlord.

On appeal, the tenant argued it was not foreseeable that a pandemic would make using the property for a massage business jeopardize public health and safety. The landlord argued that the tenant could have resumed operations after personal care businesses were allowed to reopen in Oklahoma in late April 2020. The majority of the Supreme Court recognized that while the doctrine of impossibility to excuse nonperformance applies in limited circumstances and that “contractual responsibilities are essential to the predictability for the parties,” nevertheless held that due process required that the tenant be permitted to present evidence supporting its impossibility defense.

The dissenting justices noted that the lease required the tenant to pay rent during any interruption of business that was beyond the landlord’s control and took the majority to task for “ignore[ing] precedent and rewrite[ing] the contract to the detriment of the [landlord].” Allowing the tenant to invoke the impossibility defense when it was able to conduct business, but chose not to do so, would “yield inconsistent and unfair results for all other commercial tenants and landlords,” the dissenters wrote.

Importantly, Meng was decided on procedural grounds and the question addressed by the court was merely whether the tenant should be permitted to present evidence in support of its impossibility defense. The majority declined to offer an opinion on the tenant’s ability to establish the elements of that defense. As of the date of this advisory, the Supreme Court’s decision has not been released for publication and is subject to revision or withdrawal. If the decision becomes final, landlords may find it more difficult in the future to enforce lease provisions that are intended to foreclose certain affirmative defenses asserted by defaulting tenants.

[1] The lease provided that the tenant would have no abatement, diminution or reduction of rents for any causes beyond the landlord’s control.