I lease commercial premises. Can my landlord forfeit my lease?

Commercial leases generally prevent a tenant from withholding payments of rent. If a tenant stops paying rent there will be a breach of the tenant’s covenant to pay rent which, strictly speaking, will entitle the landlord to forfeit the lease and/or seek to recover the arrears in the courts. 

However, on 23 March 2020, the Ministry of Housing, Communities and Local Government announced that all commercial tenants in England, Wales and Northern Ireland missing rent payments are to benefit from a government ban on forfeiture of their lease. This change, which will prevent landlords from terminating leases and evicting commercial tenants, is included in the Coronavirus Bill. It will come into force very shortly (once the Coronavirus Bill receives Royal Assent, which is expected to be in a matter of days) and will last until 30 June 2020, with an option for the government to extend this deadline.

It is anticipated that many commercial tenants will take advantage of the reprieve and withhold their rent. Importantly note the rules will apply not only to principal rent but to “any sum a tenant is required to pay”, leaving the burden of supplying services and insuring the premises on landlords.

It is also important to note however that the protection offered by the government is from the threat of forfeiture should tenants withhold rental payments. The liability to pay the rent however remains an interest on unpaid rents will accrue. Furthermore, remedies other than forfeiture may be pursued by the landlord e.g. service of a statutory demand before insolvency or ordinary litigation proceedings for arrears etc.. Tenants then ideally should look to reschedule or suspend rental payment through discussions with their landlord.       

The advantage of this being you might be able to negotiate a sensible and manageable repayment program in respect of the suspended rent, free of the threat of litigation.

There is no minimum period of notice you are required to give employees of their return, but from a good HR practice point of view you should be speaking to your staff and letting them know what the plan is; giving people a reasonable amount of notice of return will allow them to prepare both practically and psychologically.

Yes. The Health and Safety Executive has stated (as quoted from the Gas safe register site):

“Landlords have a legal duty to repair and maintain gas pipework, flues and appliances in a safe condition, to ensure an annual gas safety check on each appliance and flue, and to keep a record of each safety check.

“If you anticipate difficulties in gaining access as the Covid-19 situation progresses, you have the flexibility to carry out annual gas safety checks two months before the deadline date. Landlords can have the annual gas safety checks at their properties carried out any time from 10 to 12 calendar months after the previous check and still retain the original deadline date as if the check had been carried out exactly 12 months after the previous check.

“You are encouraged to arrange your annual gas safety checks as early as possible, as a contingency against tenants being in self-isolation for 14 days (in line with current guidelines), or gas engineers being unavailable due to illness. The two-month period to carry out annual gas safety checks should provide adequate resilience in most situations.

“In the event you are unable to gain access to the property, e.g. persistent refusal of access due to vulnerable tenants self-isolating, you will be expected to be able to demonstrate that you took reasonable steps to comply with the law, and that you are seeking to arrange the safety check as soon as all parties are able. This will need to include records of communication with the tenant, and details of your engineers attempts to gain access.”

Many Registered Providers have been suspending all gas and electrical testing where internal access is required, continuing checks in communal areas and are carrying out emergency repairs only, whilst void works are suspended and staff are working from home. This does not comply with the legislation, or the guidance.

Yes. You should be able to furlough a suspended employee subject to all other eligibility requirements however we recommend that you take advice on this before doing so.

This is critical. The guidance remains clear – IF YOU CAN WORK FROM HOME YOU SHOULD CONTINUE TO DO SO. Bringing people back into work unnecessarily is a big mistake.

Think about how many employees should physically return to the workplace – the fewer the people on site, the lower the risk AND the less pressure on public transport.

Employers will need to be very careful to recognise workers in vulnerable groups or who develop or live in a household with someone who develops symptoms of Covid-19 – again, look at government guidelines. You should understand that this will mean a higher number of staff absences and consider how this might be managed.

Look to keep smaller teams of workers together, minimise physical meetings and if you MUST have them, keep them short and under 15 minutes. Be imaginative – use online platforms like Teams and Zoom wherever you can.