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Coronavirus: Landlord and tenant FAQs

This page has been designed to answer landlord and tenant FAQs as a result of the Coronavirus outbreak. The page will continually grow as and when new frequently asked questions arise. Further advice and guidance can be found on our “Coronavirus – Legal advice and guidance page

Commercial

This section contains answers to questions we have received from landlords and tenants on commercial lettings since the Coronavirus outbreak.

My shop is closed because of the lockdown. Should I tell my insurance company?

Yes, a lot of insurance policies only allow properties to be vacant for a short while. There are likely to be requirements that you will need to comply with such as visiting your store and or security measures to follow. Similarly check your commercial lease as there is likely to be a clause in there as well that states you have to notify your landlord if the property is going to be unoccupied. Your Landlord will then do a similar check with their insurance company.

Can a Landlord forfeit the lease for other sums due from the tenant such as service charge, insurance, professional fees?

The moratorium that prevents forfeiture for non-payment of rent covers any charge a tenant is liable to pay even if it is not expressed to be payable as if it were rent under the terms of the relevant business tenancy.

Does the moratorium on forfeiture cover all commercial leases?

Yes, including farm business tenancies, agricultural holdings, excluded tenancies outside of the 54 Act. The policy objective is to cover all commercial leases.

Can a landlord forfeit the lease if a tenant consents for example if they are in administration?

The moratorium only applies to rent. You would need to check the terms of the lease to see if there is a right to forfeit by other forms of action or otherwise of re-entry or forfeiture due to administration. If the landlord and tenant are in agreement that the lease should be ended then a surrender recording the agreed terms would be most appropriate.

What happens if a Landlord forfeits during the moratorium?

The forfeiture will be ineffective and a tenant can make an urgent application to the court for an order to re-gain entry plus legal costs and damages for any loss of business

Can landlords enforce non-payment by other means such as enforcing commercial rent arrears recovery (CRAR), winding up proceedings or debt action?

The government announced on the 23 April new measures to safeguard against debt recovery during the Covid pandemic.

  1. Statutory Demands and Winding up Petitions issued to commercial tenants are to be temporarily voided.
  2. To exercise Commercial Rent Arrears Recovery (CRAR) the tenant must owe at least 90 days of unpaid rent.

These measures will be enforced until the 30 June and can be extended.

As far as we can see the only option left to recover the sums due would be to commence a claim in the county court which would likely take longer than the deadline above to run its course and so it is not a route we would recommend in most cases. The key message is for lenders, landlords and tenants to work together to reach agreements on debt obligations.

The changes listed about have not been passed into legislation as yet but this should follow shortly and we will update on the detail of the proposals as soon as we can.

If a tenant has a break date upon which it has to give vacant possession for the break to be effective but cannot clear the premises due to issues arising from the pandemic can the Landlord claim the vacant possession condition has not been met and that as a result the tenancy continues?

There are some arguments that might be raised such as an implied term that the condition was not intended to have application at times of emergency but these arguments are regarded by many as being dubious and the safest approach is to make every effort to clear the premises. Given that the lockdown does not prevent people working from business premises when necessary to do so legally there should be no bar on clearing the premises as clearly attendance there is required to carry out this work and the work is part of the overall business operation of the tenant. In practice it may be difficult to arrange labour and transportation but all efforts should be made.

Trespassers have moved into my property and are now occupying it, what can I do?

The government has clarified that the stay imposed on possession proceedings does not apply to a claim against trespassers/persons unknown. You can apply to the court for a possession order in the usual way. Your first step would be to collate evidence that the property is being occupied and we can then help prepare your witness statement and make the application to court.

Residential

This section provides answers to frequently asked questions we have received from landlords and tenants relating to residential lettings  due to the Coronavirus pandemic.

I'm worried about mortgage arrears during Coronavirus, what can I do?

Contact your mortgage provider as lenders are granting three month repayment holidays to all homeowners who are up to date with their mortgage payments and this includes buy-to-let mortgages who are receiving less rent as a result of Coronavirus. Be aware that this doesn’t mean your mortgage amount will be reduced, it is likely that after a payment holiday the mortgage payments will increase or the term of the mortgage extended. Landlords are expected to pass on any reduced payment arrangements to their tenants. First check your landlord’s insurance policy to see if it covers rent arrears.

I am a landlord and my tenants were due to move out during the lockdown but cannot now do so. What should I do?

Once the fixed term tenancy period expires the tenants can hold over under the terms of the expired lease until a new lease is agreed or you serve notice to quit. Often there is a clause in tenancy agreements that makes reference to what happens at the end of the fixed term. Need the property back? You can serve a section 21 notice stating three months for them to vacate and then once this expires apply to the court for a possession order. The whole process will take you at least 6 months before you can obtain a possession order. Communicate early with your tenants, maybe a compromise can be reached if they can find somewhere alternative to move to.

What happens after the eviction ban is ended if my tenant still doesn't pay their rent?

Landlords will be able to apply to court for possession provided the correct notice has been served. It is likely that the a pre-action protocol setting out steps a landlord must comply with before seeking a court possession order will come into force soon. As a result we recommend using this time now to document all the attempts (of which there should be at least two or three) where landlords and tenants have tried to reach an agreement to find a temporary solution to cover rental periods whilst the country is in a state of emergency.

Now that the Coronavirus Act 2020 has passed, how does this affect residential landlords?

The Act imposes two main changes:

1. Suspending possession proceedings until at least 20 September 2020;
2. All notice periods are extended to a minimum of three months.

Read our article “Coronavirus (COVID-19) and residential tenancies” for full details of how the Act impacts residential tenancies.

What options are available to a landlord if rent is not paid?

They can deduct the arrears from the deposit sum or still apply to the county court for a money judgment.

I cannot afford to pay rent during the crisis. What can I do?

Contact your landlord summarising your change of circumstances, providing documents in support if possible e.g letter from employer. Set out some options that you are able to financially comply with such as reduced rent or a payment holiday.

What if I need to move home during the lockdown period?

The government has amended the COVID-19 regulations to make clear that people who wish to move home can do so. Landlords can now let empty properties or even rooms in homes provided existing tenants are not symptomatic or self-isolating. Read the full guidance notes on how viewings and house moves should be conducted.

Can I leave my tenancy early because of Coronavirus?

The same rules apply as before the outbreak, if you choose to leave a tenancy early your liabilities under the agreement for example to pay rent will still continue until the contract ends unless you agree an earlier termination with your landlord. Check your tenancy to see if there is a clause that allows you to terminate early by serving a notice (usually these clauses known as break clauses are only included if you specifically asked for one at the outset).

Can my letting agent still go ahead with visits and inspections during COVID-19?

The government guidance is for first viewings to be undertaken virtually and second viewings can be done in person. Read the government’s guidance on house moving.

How do I approach my landlord for a rent holiday or rent reduction during the crisis?

You should find your landlord’s contact details on your tenancy agreement. All landlords are obliged to keep you updated with their contact details and so if they have changed they should have sent you a letter/email notifying you of this.

The government is encouraging landlords and tenants to work together to find a solution and to ensure this is being done have made provisions to halt all possession proceedings. Be honest and open with your landlord, summarise how your circumstances have changed and provide evidence in support where possible. Set out some options that you are able to financially comply with such as reduced rent or a payment holiday.

My landlord has refused to reduce my rent during the crisis. Can he do so?

Your landlord does not have to reduce the rent or change any terms of the tenancy agreement.

My landlord has offered that I can pay reduced rent for 3 months but to pay the shortfall by the end of the year. Can he do so? What are the implications?

Yes he can – no implications save for having to pay higher instalments later on in the year.

Trespassers have moved into my property and are now occupying it, what can I do?

The government has clarified that the stay imposed on possession proceedings does not apply to a claim against trespassers/persons unknown. You can apply to the court for a possession order in the usual way. Your first step would be to collate evidence that the property is being occupied and we can then help prepare your witness statement and make the application to court.

My landlord has changed the locks to my home. What can I do?

Tenants who find themselves in a position where their landlord has changed the locks whilst they are out or are prevented from entering their home or part of it, such as a bedroom, should contact their local council’s housing department for assistance or the council’s homelessness team as soon as possible. If you have nowhere to go attend the council’s offices in person with ID. Consider contacting a housing lawyer who will be able to help with applying for an illegal eviction injunction and compensation. Tenants on low incomes may qualify for housing legal aid which means the government will cover the legal costs upon a means assessment being carried out. Read our blog “Coronavirus : My landlord has changed the locks to my home” for a more detailed answer.

Right to rent checks during COVID-19 lockdown– Do I still have to meet the new tenant in person?

During the COVID-19 lockdown you do not have to meet the tenant in person. Instead you should complete the right to rent check by undertaking the following steps:

  1. Ask the tenant to submit a scanned copy or a photo of their original documents via email or using a mobile app.
  2. Arrange a video call with the tenant – ask them to hold up the original documents to the camera and check them against the digital copy of the documents.
  3. Record the date you made the check and mark it as “an adjusted check has been undertaken on [insert date] due to COVID-19”.
  4. Once the COVID-19 measures end, you will have to carry out a retrospective check within 8 weeks of the COVID-19 measures ending on tenants who started their tenancy during the lockdown period.
  5. Landlords should use the Landlord’s Checking Service if a prospective or existing tenant cannot provide any of the existing documents.

Read the full guidance on landlords rights to rent checks from the Home Office.

Southampton Contact

David Eminton
LLP Partner

T: 023 8048 2284
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Winchester Contact

Jason Oliver
LLP Partner

T: 01962 679 772
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Meet the Team

Nicola Davies
Associate

T: 023 8048 2212
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Cliff Morris
LLP Partner

T: 023 8048 2289
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Lisa White
Solicitor

T: 023 8048 2119
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Emma Cory-Wright
Solicitor

T: 023 8048 2224
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