Landlord successfully obtains judgment for commercial rent arrears in case involving COVID-19 issues

 

The first reported judgment has now been handed down in respect of a landlord’s claim for commercial rent arrears concerning issues raised in a tenant’s defence as a result of the COVID-19 pandemic, in the case Commerz Real Investmentgesellschaft mbh v TFS Stores Limited [2021] EWHC 863 (Ch).

The landlord sued TFS for non-payment of rent and service charge accruing during the period of lockdown in relation to its premises at Westfield Shopping Centre in London. TFS’ defence was three fold – first that the claim was issued prematurely and contrary to the Code of Practice for Commercial Property Relationships During the COVID-19 Pandemic, second that the claim was a means of circumventing the measures put in place by the government to protect commercial tenants and prevent landlords from using certain remedies available to it such as forfeiture and winding up petitions, and thirdly that the landlord was in breach of its insuring covenant as it should have insured against loss of rent as a result of a forced closures and/or denial of access due to notifiable disease and/or government action (and the rent cesser clause would be triggered as a result of damage caused by an insured risk).The landlord applied for summary judgment and succeeded. In respect of the first point, the court said the landlord was not in breach of the Code of Practice in issuing its claim as the code does not suspend or vary the parties’ obligations under the lease. The Code itself makes clear that it “is a voluntary code and does not change the underlying legal relationship or lease contracts between landlord and tenant and any guarantor”.In respect of the second point, the issuing of a debt claim was not a “loophole” to circumvent the measures brought in by the government to protect tenants, as the government had not altered the ability of a landlord to bring a claim for unpaid rent and service charge.In relation to the third point regarding insurance, the landlord was not required to insure against a notifiable disease or government action under the terms of the lease. They were not defined as Insured Risks and the landlord is not obliged to insure against any other risks unless it chooses to do so. Further, the landlord is not obliged to insure against the tenant’s loss of business. A policy would cover any loss of business caused to the landlord. The defendant should take out its own insurance policy to protect against its losses. Any claim by the landlord under its policy would therefore be rejected by its insurer on the grounds that the landlord had not suffered a loss to its business. There was no justification for an argument that the landlord must look first to its insurance policy where the rent remained due under the terms of the lease.In any event, the rent cesser clause is not triggered because there has been no physical damage to the property. The rent cesser clause only applied where there had been damage to the property caused by an insured risk. TFS also sought to imply a rent cesser clause where premises were incapable of being kept open contrary to a “keep open” clause in the lease. The judge helpfully commented “The lease apportions risk between the parties and the rent cesser provisions apply exceptionally in the limited circumstances they expressly contemplate, and no further.”Many landlords have had tenants raising the Code of Practice as a reason not to pay rent and so this judgment is welcome in making clear that the Code of Practice does not alter the obligations in the lease of a tenant to pay rent. This judgment deals with issues raised by tenants regarding the terms of the insurance. Whilst a landlord must insure for the defined Insured Risks, there is no obligation for it to insure for any other risk. Further, the comments regarding rent cesser clauses confirms that the rent cesser provisions should not apply to wider circumstances than it states on the face of it.The case was determined at summary judgment rather than at trial and so there is scope for arguments to be developed at a full trial in other cases, but there is now some judicial commentary on how cases involving COVID-19 defences may be considered by the courts.With the moratorium on forfeitures due to end on 30 June 2021, and in light of this judgment, landlords may now see an increased willingness for tenants to pay their rent arrears or at least to reach agreement on the rents.If you are a landlord or tenant and require any assistance with matters concerning rent arrears, please contact David Marsden or Alison Willis.

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