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Dealing With Tenant Inability To Pay Rent In Commercial Leases During Covid-19

Dealing With Tenant Inability To Pay Rent In Commercial Leases During COVID-19

As business activity has reduced and cash-flow stopped in many sectors as a result of the COVID-19 restrictions, tenant inability to pay rent is an inevitability. In order to survive the economic impact, Landlords and Tenants alike will be eager to work through this time in a way that protects their investments and businesses and without resorting to potentially expensive litigation with no realistic prospect of achieving the desired result. Open communication between both parties at an early stage is critical and it is important that all concessions, variations of lease agreements and guarantees are documented in writing.

This article explores practical ways of dealing with tenant inability to pay rent in commercial leases as a result of the adverse impact of COVID-19 restrictions.

  1. Concession by way of a Side Letter

Usually, concession arrangements are documented by way of a 1-2 page side-letter so they are quick to put in place and consequently offer immediate relief. Depending on an arrangement with its funder/s, a Landlord could be in a position to offer a commercial tenant a ‘rent-free’ or ‘rent suspension’ period during say Q2 (1 April to 30 June) or Q3 (1 July to 30 September) of 2020 by way of a side letter.

Any agreement reached regarding the responsibility to pay rent must be clear. A ‘rent free’ period is very different to a ‘rent suspension’ period. The latter infers that rent will be payable at some point in the future and interest on late payment may apply – which should be documented in the side-letter. Landlords could also consider moving from quarterly to monthly rent payments. Whilst the rent for occupying the premises could be suspended or written off by the Landlord entirely (subject to its funder’s requirements), it is strongly recommended that a tenant’s obligation to pay insurance, rates and service charges remain in place to ensure the Landlord’s valuable asset is maintained in accordance with good estate management practice. Business interest groups in affected sectors such as retail are reported to be lobbying the government for a waiver of rates for 12 months and it is important for a Landlord to ensure a Tenant would be in a position to avail of any reliefs in this regard.

The parties need to consider the circumstances in which the concessions would fall away – for example, consecutive non-payment of rent by the Tenant, persistent breach of other lease provisions or assignment to another tenant.

NB:  A Landlord and Tenant may consider agreeing ‘rent-free’, ‘rent suspension’ or ‘rent reduction’ periods in consideration for an extension of the term of the Lease or the removal of a Tenant break clause, for example. Whilst it is possible to incorporate the foregoing into a side letter, an agreement to vary the lease would be more appropriate. Both parties are reminded that if a Guarantee is in place, any variation of the Lease regarding term or rent will in most cases need to be agreed and confirmed by the Guarantor. Failure to do so could invalidate the guarantee.

  1. Variation of Lease by Agreement

Variation of Lease Agreements are more detailed documents which may be necessary if a Guarantee is in place (as described above) or the recent agreement reached between the Landlord and Tenant in principle is intended to last long-term or it affects key operational clauses of the Lease which requires careful scrutiny. For example, a Landlord may agree to dispense with a ‘keep open’ clause in consideration for a Tenant agreeing to put and keep business interruption insurance in place which might require a knock-on amendment of the definition of Tenant ‘insured risks’ in the Lease. A Variation of Lease Agreement is similar to a Lease in that it must be executed ‘as a deed’ by both parties and if there is a Guarantor, it should be a party too or confirm the agreement by way of a separate document.  In addition, a Landlord funder’s consent to the variation will in most cases be required. However, Revenue has confirmed that no stamp duty is payable upon the execution of a Variation of a Lease Agreement and a stamp duty return is not required.

  1. Mortgages

It perhaps goes without saying that Landlords will be required to engage with their lending institution before reaching any concession or variation of lease in principle. A letter of consent to the variation of the lease agreement will be required in most cases where a funder is involved. It is not in the interests of a lender to enforce against commercial landlords who are in arrears due to the COVID-19 crisis as the lender will be faced with the same problems as the landlord if it was to take possession – engagement may well be positive as a result. In addition, the Banking Payments Federation of Ireland has reported a joint plan of five pillar banks (AIB, Bank of Ireland, PTSB, KBC Bank Ireland plc and Ulster Bank) to introduce working capital supports for businesses affected by the impact of COVID-19 restrictions and Tenants with cash flow shortages are encouraged to avail of all available reliefs at this time.

It is extremely important that all concessions and variation of lease agreements are documented carefully in writing and that Guarantors and Lending Institutions agree to all relevant amendments.  An experienced solicitor in this area could assist a Landlord in protecting its valuable asset and a Tenant by ensuring the agreement reached reflects a fair and workable solution to the issues it faces during this difficult and uncertain time.

For advice in relation to your own commercial lease obligations and rights please contact Deirdre Farrell at deirdre@amoryssolicitors.com, telephone 01 213 5940 or your usual contact at Amorys. Amorys Solicitors is a boutique commercial and private client law firm in Sandyford, Dublin 18, Ireland.

How Employers can Respond During the Covid-19 Pandemic

For Employers – How to respond during the COVID-19 pandemic

As much as possible during this unprecedented time, employers need to be responsive to the many changes that have been introduced to help keep businesses going. In terms of Human Resources, it is ‘business as usual’ with emergency procedures such as the Temporary Wage Subsidy Scheme introduced to help keep as many employees on the payroll as possible. Employees in receipt of the Temporary Wage Subsidy Scheme can work full-time hours.

If your employees are working remotely, it is important that employers keep in touch with their employees as much as possible. Remember that this is a difficult and stressful time for many of your employees so try to maintain relationships in a positive way as the organisation will need them when usual business resumes.

The following are some issues which may arise for employers during the COVID-19 period:-

  1. PAY REDUCTIONS – If you want to retain your employees on the payroll, employers can reduce pay by a certain percentage however it must apply across the board so that it is not seen as unfair treatment. Employers can also place employees on a shorter working week.
  2. LAY OFFS – If the employer has no other choice but to lay off staff, there needs to be a provision in the employee’s contract of employment to allow for temporary lay-off. Otherwise, the employer can look to negotiate with each employee to come to a suitable arrangement which then needs to be put in writing.
  3. THE REDUNDANCY PROCESS – New provisions have been put in place where an employee cannot ask for a redundancy during this time. Employers can still instigate redundancy during this time. The full process of redundancy including giving the employee other options should be adhered to. Please see our article on the Emergency Measures in the Public Interest Act 2020 for further details.
  4. EMERGENCY STAFF – it is vital that employers comply with all of the HSE guidelines regarding the wearing of PPE, hand sanitiser use, disposable glove use etc. by their employees. It is important to be reasonable when asking an employee to come to their place of work. The employee may have personal health concerns, childcare obligations or they may be a carer for a family member. If an employee is refusing to come to work and all of the HSE guidelines are being followed by the employer, it is advisable to firstly talk to the employee and find out the reason that they will not come to work. It is possible to implement a disciplinary process for an employee that refuses to come to work however employers should use their discretion and be seen to be acting reasonably in the circumstances.
  5. CURRENT INVESTIGATIONS & DISCIPLINARY ISSUES – the usual procedures continue to apply during this period. The employee continues to have the right to be represented and the process can be continued via Zoom or some other suitable video conference application provided the employee consents.  If consent is not forthcoming the process can be suspended until things return to normal and the employee is back in the workplace.
  6. HOLIDAYS – holidays still accrue for employees in receipt of the Temporary Wage Subsidy Scheme and employees are entitled to paid holidays.
  7. IF THERE IS AN OUTBREAK OF COVID-19 IN THE WORKPLACE – There are certain obligations that an employer must adhere to when there has been an outbreak of COVID-19 in the workplace. Ensure that the infected employee stays at home and self-isolates and advise them to immediately contact their GP if they haven’t done so already. Inform employees that there has been an outbreak in a clear and calm fashion. Let them know that if they develop symptoms that they should contact their doctor immediately and follow their advice.
  8. NEW EMPLOYEES – What if a new employee is due to start a job in your organisation during the COVID-19 pandemic. Firstly, contact the employee and explain the situation. Ask the employee to postpone the start date and if the employee agrees send a letter or an email to confirm this. If the employee does not want to postpone the start date, the employee will have to start work and may be laid off.  It is, of course, vital to ensure that the contract of employment has a lay-off provision. This may be a good time to review your employee contracts and staff handbook!
  9. GDPR OBLIGATIONS – obligations in relation to GDPR are not suspended during the COVID-19 period and organisations are expected to comply in the usual way with GDPR requests.  There are three important criteria to adhere to during this time.  Firstly, communicate with the employee regarding their request.  Secondly, provide contact information on who is dealing with the matter. Thirdly, be sure to document all communication on the issue.  Both employers and employees need to be both reasonable and realistic during this time and an employer could request an extension of time to comply with the request in light of the current COVID-19 restrictions.
  10. PERFORMANCE REVIEWS – If at all possible, try to keep the normal HR processes in place for your employees. Performance reviews could be completed remotely and also provide an opportunity for the organisation to touch base with their employees.
Whilst every effort has been made to ensure the accuracy of the information contained in this article, it has been provided for information purposes only and is not intended to constitute legal advice. If you would like to further information in relation to How Employers can Respond During the COVID-19 Pandemic please contact daragh@amoryssolicitors.com, tel +353 (0)1 213 5940 or your usual contact at Amorys. Amorys Solicitors is a boutique commercial and private client law firm in Sandyford, Dublin 18, Ireland.

The Emergency Measures in the Public Interest (COVID-19) Act 2020

The Emergency Measures in the Public Interest (COVID-19) Act 2020

In response to the COVID -19 epidemic, the houses of the Oireachtas have enacted the Emergency Measures in the Public Interest (COVID -19) Act 2020, (“the Act”).

For the purpose of this article, we will focus on the measures introduced in order to help employers navigate their way through the emergency. The measures introduced are aimed at minimising job losses and the overall impact of the virus on the economy.

Part 7 of the Act

Part 7 of the Act provides for a “temporary wage subsidy” provision for employees who were on the payroll in the business of an employer as of the 29th of February 2020. The temporary wage subsidy provides for a subsidy in wages at the rates set out below for a period of 12 weeks.

In order to be able to avail of this subsidy, the business or employer of an employee must make a declaration to the Revenue Commissioners confirming that by reason of the COVID-19 epidemic, there is at least a 25% reduction in either the employer’s turnover or orders being received by the employer which prevents the employer maintaining normal wages and that regardless, the employer intends to continue to employ the employee.

Subject to compliance by the employer of all provisions within the Act, the following provisions shall apply:-

  1. Where an employee’s weekly pay is less than or equal to €586.00, 70% of the employees take home pay to a maximum of €410.00 will be paid;
  2. Where the employee’s weekly pay is greater than €586.00 and equal to or less than €960.00 a maximum of €350.00 will be paid;
  3. No subsidy is payable in respect of employees whose average net weekly pay exceeds €960.00.

In order to apply for the scheme, employers are required to submit an application via ROS.

Revenue has clarified in recently issued guidance notes on the subject (reply to FAQ 3.11. on page 10) that whilst the subsidy is not subject to PAYE, it will be taxable on the employee at a year-end review.  If the tax assessed as owing by the employee in 2020 is more than his/her unused tax credits at the end of that year, Revenue has clarified that the outstanding tax will be clawed back by reduction of personal tax credits.

It is worth noting that the Revenue requires (see reply to FAQ 4.12. of the guidance notes) an employer to reimburse an employee for any overpayment of PAYE or USC deducted from an employee to date by operation of the Temporary Subsidy Scheme. Whilst Revenue has stated in its guidance notes that it will then reimburse the employer by the amount paid in this regard, the relevant legislation classifies this payment differently to the refund of the subsidy and they may both be paid on different dates (ie one later than the other). In light of this unknown, we would advise consulting your auditor or financial adviser before engaging in the scheme. Further Revenue guidance notes on the reimbursement arrangements are expected to issue on the Revenue website soon.

Revenue has also clarified in further guidance notes that the declaration required to support an employer’s application is not a declaration of insolvency.

Part 8 of the Act

Part 8 of the Act has altered an employee’s right to call on an employer to make them redundant during the emergency period in circumstances where they have been placed on short term lay off or have been laid off as a result of the COVID-19 pandemic. The “emergency period” runs from the 13th of March 2020 to the 31st of May 2020. This period of course may be extended at a later date if deemed necessary.

The practical benefit to an employer of this restriction is that they do not have to retain funds for the purpose of making statutory redundancy payments throughout the emergency period. Ordinarily, an employee would be entitled to call on their employer to make them redundant in circumstances where they have been laid off for 4 weeks or more or where they have been put on the short term for at least 6 weeks in the last 13 weeks.

Clearly the foregoing measures have been introduced as a means of trying to preserve employment throughout the pandemic. The measures provide employers with some comfort in that they cannot be called on to make redundancy payments throughout the emergency period, whilst also with the assistance of the State, employers may be able to maintain payment to their employees.

If you would like any further information in relation to the foregoing or have any queries with regard to employment law issues during this epidemic then contact Brian Kirwan at brian@amoryssolicitors.com or Deirdre Farrell at deirdre@amoryssolicitors.com or your usual contact at Amorys.