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The POWER 30: Mark W. Vyvyan

Commercial landlord/tenant disputes have been increasing during the COVID-19 pandemic. They may be looking at impossibility of performance or force majeure claims with tenant’s businesses being forced to close.

But many of these situations have lent themselves to negotiated solutions, according to Mark Vyvyan of Fredrikson & Byron, where he is a litigator in real estate and other cases including foreclosures and mechanic’s liens.

“Typically I have a funky boundary or easement dispute,” he said.

The landlord/tenant cases have generally been worked out, Vyvyan said. “I’ve been impressed by the reasonableness of the parties. They’ve had to work it out for both to survive.” Some landlords will not grant any relief, Vyvyan said, but most cases have been resolved.

Commercial evictions are not subject to a moratorium but there haven’t been many in the pandemic.

But Vyvyan is a litigator because he likes winning cases and doesn’t like losing them. His victories include a summary judgment in a claim against his client brought by a townhome association for $2 million and a defense verdict in a claim against his client for breach of a purchase agreement. And in a case sure to win many lawyers’ hearts, he prevailed in a case seeking to evict a golf course and collect $2 million in damages. He was also awarded attorney fees.

Vyvyan has tried four cases during the pandemic. He had one last July in North Dakota which he described as “pretty normal.” A September trial in Hennepin County was supposed to be a jury trial but at the last minute the plaintiff waived his jury trial rights because the judge would not allow remote testimony to a jury. In December 2020 he did a completely virtual trial with his client in the office in a separate room. That trial also involved a translator. The fourth was a live trial in Williston, North Dakota, with witnesses in the courtroom.

Vyvyan said there are more disputes over payment. “People just don’t have money,” he said. There is still a lot of work over construction defects, but not for Vyvyan. Currently, he’s not doing those cases.

Homeowners are frustrated and angry over defects, and it’s been worse in the pandemic. Part of the frustration is that it’s their home and they’ve been stuck in it, he said. Issues that are minor can seem larger when the owner has to look at it every day, he said. He recalled one trial over a cabinet, which the court found was not a defect.

Mechanic’s lien cases may be disputes over whether a lien has been perfected or whether the lien statement has been properly served. But sometimes it’s like a typical contract case — whether the performance by the lienholder was acceptable. Sometimes there are multiple lienholders or other moving parts in a dispute.

Disputes between the subcontractor and the general contractor may be resolved if the parties expect to work together again, Vyvyan said. “But sometimes there’s just bad blood.”

 

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