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205-207 NEWBURY, LLC. V. CAFFE NERO AMS,. INC. 2021 Mass. Super. LEXIS 12 (2021)

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Nature of the Case

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Facts

P leased retail space to D. One condition was that D could use the leased premises only to operate a 'Caffé Nero themed café' and not for any other purpose. D was required to operate this café 'in a manner consistent with other D locations in the Greater Boston area,' to serve food and beverages 'of first-class quality,' and could only offer take-out sales 'from its regular sit-down restaurant menu.' D's business model was to serve great coffee and food that customers could enjoy and linger over in a comfortable indoor space. D took almost a year and spent $1.3 million to build out the space. It opened and began operating the Newbury Street Caffé Nero in June 2018. In March 2020 the Governor barred Massachusetts restaurants from allowing on-premises consumption of food or beverages, indoors or outside. P wrote to D a few days later, saying that it could not pay rent while its business remained closed. It asked P to waive all rent while the business was required to remain closed. P refused. D did not pay its April 2020 rent. P terminated the lease. Section 11.1 of the Lease provides that D would be in default if it failed to pay any rent when due and did not remedy the non-payment within five days after receiving written notice of it from P. In early June the Governor issued a further order allowing the phased reopening of businesses that had been closed due to the pandemic. D was able to begin offering 'outdoor table service'-but was still barred from letting any customers inside the leased premises. D reopened its Newbury Street location on June 8 and made sales at or from those premises during June, July, August, and September 2020. D offered to pay D a higher percentage of sales in lieu of fixed rent, to cover P's out-of-pocket costs including real estate taxes, building insurance, and maintenance. D rejected that offer. P continued to pay no rent, even though it still occupied the premises and had reopened its business. P brought a summary process action to evict D from the premises, on June 29, 2020. Seven days after D was first allowed to resume indoor, on-premises service. It filed this action for damages on July 7, 2020. P was unwilling to negotiate and D vacated After removing its equipment and furnishings, and also demolishing and removing the walk-in freezer and refrigerator as requested by P. D returned the keys and vacated the premises on October 29, 2020. P moved for partial summary judgment.