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The Covid-19 crisis has seen an unprecedented number of businesses facing collapse. But what happens if your business has an opportunity to get back on its feet only to face eviction from the landlord?
Simon Roberts, Senior Associate Solicitor from DAS Law, tells you what you need to know…
If the commercial lease is still within a fixed term period, a landlord would only be able to end the tenancy before the expiry of the fixed term owing to non-payment of rent if the commercial lease had a forfeiture clause allowing the landlord to recover the property from the tenant immediately for the non-payment of rent.
However, the Coronavirus Act 2020 imposed on landlords a prohibition against being able to exercise forfeiture for non-payment of rent. This is currently in place until 30 June 2021. Forfeiture can also be used when a tenancy becomes a periodic tenancy outside of a fixed term period, but any forfeiture clause is still currently prohibited in the same way as above.
If a landlord has served a s25 Notice under the Landlord Tenant Act 1985, only when the landlord is seeking to deny the tenant a new lease on ground(b) persistent delay in pay rent that has become due, does the Coronavirus Act 2020 provide the tenant with any specific grounds to challenge.
Section 82(11) of the Coronavirus Act 2020 provides that, for the purposes of determining whether Ground (b) is established, any failure to pay rent under the tenancy during the relevant period (whether the rent fell due before or in that period) is to be disregarded. The relevant period is currently 26 March 2020 to 30 June 2021.
If you feel the business is in a strong position to recover when covid related restrictions start to ease, then demonstrate this to the landlord. Put forward a realistic proposal to the landlord whereby any arrears can be paid back over a realistic period of time together with maintaining future rental payments. Ask for a rental holiday, or an agreed reduction in rent over an agreed period of time.
However, a landlord is unlikely to agree to either of the above where there is no intention for the shortfall to be repaid at some later point in time, but there is no harm in asking. Essentially there is not likely to be a long que of willing tenants waiting to take over premises should you be evicted, so convince the landlord it would probably be better to stick with you as a tenant in the long term.
Business rates relief is the main mode of financial assistance provided from the government to tenants. This is only available in specific business sectors such as shops, retail and hospitality to name a few. The relief is applied automatically by the local council a tenant pays business rates to. Any enquiries about business rates relief should therefore be directed to the local council.
A landlord of commercial premises is only able to increase the rent on a commercial lease if there is a rent review clause in the lease itself. If there is no written lease, or if the lease does not provide for a rent review then the landlord cannot increase the rent. Where a lease does contain a rent review clause the operation of this has not been restricted in any way by the coronavirus situation.
Further information on this topic can be found on DAS Businesslaw. To find out if you have access to this resource, please consult your policy documentation or contact your insurance broker.
If you are an insurance broker then you can quote and buy our products via DAS Connect, our E-Trade portal, or via your Acturis account.
DAS Businesslaw can help policyholders create a range of documents such as ready-to-sign contracts (with built in e-signature functionality), agreements, policies and letters.
Customers can also access guidance on a wide range of legal matters such as new legislation, employment issues, crowdfunding, tax and financial planning, and data protection. The service also includes numerous COVID-19-specific templates and guides for businesses.
Disclaimer: This information is for general guidance regarding rights and responsibilities and is not formal legal advice as no lawyer-client relationship has been created. Note that the information was accurate at the time of publication but laws may have since changed.
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