By Andrea White - 30 Sep 2021
Both landlords and tenants were surprised by the
Government's sudden announcement that it had introduced changes to
help ease the impacts of COVID-19 restrictions on both commercial
and residential tenancies, to take effect from 28 September 2021.
The changes to commercial tenancies had been foreshadowed last year
but did not become law.
The measures included in the Covid-19 Response Legislation Bill
have been proposed to help businesses resolve disputes over
commercial rent, as well as provide greater certainty for landlords
and tenants by protecting residential tenancies from being
terminated during alert level 4.
We have already had several clients make contact to see what
these changes mean for them in relation to their commercial
tenancies, so have compiled a list of the most common concerns
below.
What does this mean for my commercial
tenancy?
The Government has introduced a bill which will amend the
Property Law Act 2007 (PLA) to imply into every
commercial lease, where there is not already one, a clause that
provides for a fair proportion of rent to cease to be payable for
the period during which there is an epidemic and the tenant is
unable to gain access to its premises to conduct fully its
operation from the premises for health and safety reasons.
Health and safety reasons include restrictions imposed by any
competent authority on occupation of the leased premises.
In determining what is a fair proportion the parties must
consider what rent relief has been offered since 18 August 2021 for
the restriction on access to the premises because of the
epidemic.
Any disputes under the implied provision are to be referred to
arbitration.
Where the implied term applies to a lease, any action to cancel
the lease or obtain an order for possession of the premises will be
considered not to comply with the PLA's requirements (which are
mandatory) unless the landlord has also complied with the
obligations under the implied term.
The provisions clearly apply to the situation where, for
example, a COVID-19 lockdown prevents the tenant accessing its
premises to carry on its business in its usual fashion. If the
parties do not reach agreement on the amount of the rent or
outgoings reduction, the tenant or the landlord will be able to
force the other party to arbitration.
The new law is proposed to come into effect from 28 September
2021 which means that tenants whose leases into which the provision
will be implied can begin to feel some relief right now, given the
likely backdating. Note, though, that the full statement yesterday
by the Minister does invite submissions as to the date when these
changes will become effective.
I already have a no-access clause in my lease, what
does this mean for me?
The proposed change will apply only to leases which do not
already provide for adjusted rent or outgoings payments during an
emergency situation (such as COVID-19) where a tenant is unable to
conduct fully its operations from the premises because of health
and safety reasons.
I have already reached agreement regarding rent relief,
does this change anything for me?
If a landlord and tenant have already agreed on a reduction of
rent, this will not alter that agreement. However there may be
situations where (for example) a tenant was forced to accept a
reduction of rent for only part of the affected period. In that
situation a tenant may still be able to request further relief and
force arbitration in the event that agreement could not be
reached.
My lease does not contain a no-access clause and we
have no agreement yet, what should I do?
If you are a tenant and haven't done so already, you can contact
your landlord to begin discussions about your respective
circumstances and to work out what is a fair proportion of rent
that should cease to be payable. If agreement cannot be reached
either party does have the right to invoke arbitration. We would be
happy to assist you in that action.
If you are a landlord and have been approached by your tenant
and would like more specific advice, we can assist you with
expanding on your obligations in your specific situation.
Can a tenant force arbitration from 28 September 2021
if no rent relief has been offered?
We think it would be difficult for a tenant to exercise that
right from today and actually give formal notice to its landlord
that it invokes arbitration, because the law is not yet in place.
However, the knowledge that the law will shortly be in place should
assist the tenant in immediate negotiations with its landlord.
The Property
Team at Martelli McKegg has significant leasing experience,
with a particular focus on retail. Over the last 18 months our team
has represented both landlords and tenants from numerous shopping
centres and privately owned properties in the negotiation and
preparation of agreements for COVID-19 rent relief. If you need
assistance or advice regarding your commercial lease, contact our
team today.
Contacts
Andrea
White
Vanessa
Dew
Phil
Blank
Vina
Singh