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Update: The stay on business tenancy terminations continues

The Coronavirus Act 2020 (“the Act”) came into force on 25 March 2020.  For landlords and tenants in England and Wales, the Act immediately prevented a landlord from terminating certain business tenancies through forfeiture for non-payment of rent – a restriction initially imposed until 30 June 2020.  This date was subsequently extended to 30 September 2020, 31 December 2020, 31 March 2021 and 30 June 2021. 

The Government has now announced that the moratorium on the forfeiture of business tenancies will be further extended until 25 March 2022. Powers remain available in the Act for further extensions beyond this date. 

The Government’s position remains that any tenants who can pay all or any of their rent should do so and where tenants’ businesses have been forced to close, they should start paying their rent as soon as the restrictions change.

The latest extension is contained within The Business Tenancies (Protection from Forfeiture: Relevant Period) (Coronavirus) (England) (No. 2) Regulations 2021 (“the Regulations”) which will come into force on 30 June 2021.

The restrictions apply to forfeiture by a landlord instructing a bailiff to change the locks as well as to forfeiture proceedings via the Court.

What tenancies do the restrictions apply to?

The Act states that the restrictions benefit any business tenancy to which Part 2 of the Landlord and Tenant Act 1954 (“the 1954 Act”) applies.  The Explanatory Notes accompanying the Act confirm that the Government intends it to also apply to leases where the protection of the 1954 Act is excluded.  The provisions also seek to cover lawful subtenants.

Does it apply to rent or other payments under the lease including service charge and insurance?

Yes, the definition of rent extends to any sum payable under the business tenancy including insurance, service charges and interest.

If the landlord enters into discussions with a commercial tenant in relation to the sums owed, could it lose the right to forfeit for non-payment of these sums?

No – the Act states that the landlord’s conduct during the relevant period (25 March 2020 to 25 March 2022) will not be treated as waiving the right to forfeit for non-payment of rent unless the landlord gives an express wavier of the right to forfeit in writing.  In effect, the landlord’s right to forfeit for unpaid rent is “frozen” until 26 March 2022.  The Act states that the right to forfeit will be preserved for non-payment of rent.

If the parties agree a rent concession, the question of whether there will be changes to the landlord’s right to forfeit for non-payment of rent will depend upon the precise terms of the rent concession agreement.

What about existing forfeiture proceedings?

Under the Civil Procedure Rules, a stay on possession proceedings and enforcement of orders for possession was put into place until 20 September 2020.  However, this has now been lifted.  Nonetheless, the restrictions of the Coronavirus Act 2020 mean that landlords are still not entitled to issue any forfeiture proceedings for arrears which fell due since 25 March 2020.  Moreover, under the Act and the Regulations, Courts will not be able to make a possession order which requires a tenant to give possession of business premises for non-payment of rent to the landlord before 26 March 2022. 

What will happen when the restrictions are lifted?

The Government launched a call for evidence which closed on 4 May 2021 to assess the progress of negotiations between landlords and tenants in relation to commercial rents and to determine whether the stay on business tenancy terminations would be lifted on 30 June 2021, extended, or there would be some other course of action (see here for more information on the call for evidence).  The Government’s formal response to the call for evidence is awaited.  However, the Government has announced that in addition to the extension of the forfeiture moratorium to 25 March 2022, arrears which have arisen during periods where a tenant business was forced to close a result of a Lockdown will be “ringfenced” and landlords and tenants encouraged to reach agreement regarding arrears.  Where agreement cannot be reached, there will be new legislation to create a binding arbitration process (see here for further details).

The restrictions detailed above have been removed.  Please refer to our latest guidance in our March 2022 Quarter Day page which can be found here.

In this fast-paced period of unprecedented change, if landlords or tenants have any further questions about the operation of the Act and how it may affect them, please do not hesitate to contact Emma Humphreys, Laura Bushaway or your usual Charles Russell Speechlys contact.

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