There is no easy yes or no answer to this. The risk for the landlord is that by doing so, this breaches a general obligation of quiet enjoyment the landlord owes to the tenant under the lease or tenancy and could be argued as having derogated from grant. In effect, denying the tenant the use (or opportunity to use) the premises the landlord has agreed to give by granting the lease or tenancy in return for rent.
The position can however, be affected by the circumstances of the letting and also the extent of mandatory requirements issued by the Government from time to time arising from the Covid-19 outbreak. The tenant must ultimately comply with legal responsibilities in using the premises, and there may be situations where the tenant is obliged by law to close during the course of the pandemic. Tenants who continue to trade from leased premises in contravention of a legal requirement to close risk finding themselves in breach of covenants in the lease to comply with statutes, regulations and laws relating to the property, as well as enforcement action by competent authorities in the form of prohibition notices and unlimited fines.
Landlords will need to take particular care where they have several tenants either in the same building or the same estate, and there are common areas or facilities they all use and for which the landlord is responsible. Landlords should review arrangements with their managing agents, to see whether they will need to introduce regulations regarding use of areas in order to comply with Government guidance, or with regard to services which may need to be temporarily suspended or added to in order to ensure health and safety requirements remain adequate during this exceptional period.
Service charge provisions will need to be reviewed by landlord with their managing agents, to check whether additional expenses arising from steps taken to comply with Covid-19 can be recovered from tenants; and to be clear on what services can legitimately be withdrawn or added to within the terms permitted by the lease or tenancy.
If we can assist with any questions you may have, please contact the TSP Commercial Property team on 01206 574431 or by e-mail at info@tsplegal.com.
This note is for general information and guidance and is not legal advice.
