COVID-19: Rent mitigation negotiations between landlords and tenants

The Government's Coronavirus Act and the regulations made under it prevents landlords from seeking to forfeit leases falling within Part 2 of the Landlord and Tenant Act 1954 for arrears of rent, until 30 June 2021. The Ministry of Housing, Communities and Local Government has explained that this is intended to apply to all commercial leases whether or not they fall within Pt2 LTA 1954, and that rent includes all sums, including for example service charges, due under the lease.

At the end of this period, unless landlords and tenants have made other arrangements, or further legislation is enacted, landlords will again be able to seek forfeiture where tenants are still in arrears of rent. We have seen lots of correspondence between tenants and landlords in the interim, trying to agree arrangements in respect of these payments.

CIGA contains temporary measures to protect commercial tenants, including a temporary ban on the use of statutory demands to provide evidence of insolvency and winding up orders where a company cannot pay their bills due to coronavirus. 

The Government has also put in place legislation to prevent landlords using the Commercial Rent Arrears Recovery statutory regime unless they are owed rent for 276 days or more, which will increase to 457 days from 25 March 2021 and 554 days between 24 June 2021 and 30 June 2021. 

We continue to monitor this.

We have seen requests from tenants to pay less rent for a fixed period, for the period during which the Covid-19 virus affects trade and/or for the remainder of a lease. Sometimes these requests are coupled with a proposal to pay the arrears caused by the reduced rent at a later date.   

Leases, except where rent is entirely calculated by turnover, do not contain provisions allowing reductions in rent. At present, rent can only be reduced or delayed by agreement between a landlord and a tenant.

If a landlord is prepared to negotiate a change to the tenant's rent payment obligations under the terms of its lease, and has the consent of its lender and landlord if required, then this arrangement should be documented. If it is not, there is a risk that a tenant may subsequently claim that the landlord has lost its right to enforce the lease terms by way of waiver or estoppel.

A change in rent payment terms can best be recorded in a side letter. This is preferable to a deed of variation of a lease, as a variation is more time consuming to negotiate and may bind successors in title.

If a landlord is willing to suspend payment of rent for a limited period, the parties should try to record this arrangement. The landlord could confirm that it will permit suspended payment of rent on specific quarter days or other payment days for a limited period and will expect payment of the arrears at a later date. Again, a side letter is the best means to achieve this.

Some tenants have taken a unilateral decision to suspend rent payments. Some tenants have paid just a single month's rent rather than a full quarter's, to see whether this is accepted. If a landlord does accept one month's rent and does not forfeit the lease, it will waive its right to do so for the remaining two months' arrears. It will not lose the right to recover them as a debt (subject to the temporary measures proposed by the Government referred to above), simply the right to forfeit for them. This waiver will not apply to any future failure to pay rent.

If a landlord of multi-let premises has incurred costs in connection with its response to Covid 19 which are outside its usual service charge expenditure, its tenants may try to argue that such costs are for the landlord to pay, or should be recovered under its insurance policies, rather than being passed on to tenants via the service charge. Whether or not this is a good argument will depend on the drafting of the service charge provisions in a lease. Well-drafted leases will include sufficient flexibility to allow recovery of costs incurred by a landlord in relation to compliance with statute, regulations, health and safety measures, safety and security and the wellbeing of tenants.

The tenant might argue that the landlord has breached the tenant's quiet enjoyment of the premises or derogated from grant (if, for instance, the landlord has shut the premises or closed common parts for deep cleaning) and that it is therefore entitled to compensation equivalent to all the rent and any other charges, plus other losses arising.  Such an argument is likely to be based on the idea that the landlord's acts have made the premises unfit or unsuitable for the purpose for which they were let. If premises are closed without a tenant's agreement, a tenant could succeed with this argument.

If a landlord closes premises and prevents a tenant having access, that tenant could assert that the landlord has illegally forfeited the lease.  In this case it would be difficult for a landlord to maintain that it had not forfeited in order to enforce covenants including rent payment under a lease.  If the tenant wanted the lease to continue and applied to court for a declaration that forfeiture had occurred illegally, it would be likely to succeed and to be able to recover costs and damages.  If the landlord has notified the tenant of a proposed temporary closure and tried to discuss these arrangements, a claim by a tenant that this amounted to forfeiture is less likely to succeed.    

Alternatively, a tenant might argue that the lease has been frustrated because the tenant is not able to use the premises. This is unlikely to be a successful argument in court except if the remainder of the term is short and expires before the tenants are free to return to the premises.  In most cases a temporary inability to use premises will not amount to frustration of a lease.

The Supreme Court was asked to determine whether various standard clauses in business interruption insurance provided cover as a result of Covid-19. It handed down its decision on this on 15 January 2021. It determined that some policy wording relating to damage and insured events, which had not been agreed with any contemplation of a pandemic, did take effect to provide some landlords and tenants with cover. This decision is specific to the forms of wording in individual business interruption policies and does not mean that all policies provide cover or that all losses resulting from Covid-19 are covered but nonetheless this may provide an alternative means of recovering money for landlords and tenants. The FCA has provided some guidance regarding the types of evidence and methodologies which policyholders may wish to use when proving the presence of Covid-d-19 in a particular area around their premises.

While there are actions that landlords can take against tenants to enforce the rent payment terms of leases, it will usually be better for both parties if they can reach agreement with any tenants who seek concessions.  Any such agreements should be recorded in the form of side letters. Tenants should seek to put arrangements in place with their landlords if they have not yet done so, to avoid forfeiture action post 1 July 2021.

The Government has indicated that it will be reviewing the Landlord and Tenant Act 1954 this year. We will monitor this process. 

For more detailed information for landlords, click here, and for tenants, click here.