In its initial package of support for businesses affected by restrictions imposed in response to the coronavirus, the Government restricted landlords' right to forfeit commercial leases for non-payment of rent. When rent payable on the March quarter day went unpaid, some landlords responded by taking other steps, such as serving statutory demands and commencing winding up proceedings against tenants.
Back in April, the Government introduced measures to restrict the use of Commercial Rent Arrears Recovery ("CRAR"). Those measures were extended in June, and have recently been extended further to allow tenants more breathing space.
What is CRAR?
In summary, CRAR is a process allowing landlords to appoint registered agents to enter tenants' premises, take control of goods and sell them to pay off arrears. It replaced the old remedy of distress. CRAR can only be used in relation to written leases of commercial premises. It has not seen great uptake since its introduction in 2014. CRAR has equally not been especially popular since the outbreak of coronavirus: it requires the registered agent to physically attend the premises and is usually only exercised when the tenant's business is open for trade. In the absence of forfeiture or serving statutory demands, though, it was one of the obvious next steps for landlords, particularly now that the lockdown is lifted.
What has changed?
The most significant change is to the minimum arrears necessary before CRAR can be initiated. Prior to coronavirus, landlords could initiate CRAR where the tenant was in arrears equalling at least 7 days' rent (i.e. principal rent, not service charges or other sums defined as rent under the lease). The most recent changes mean that from 29 September 2020 to 31 December 2020, CRAR action can only be taken if there are at least 276 days’ rent arrears for action taken before 25 December 2020, and 366 days’ rent arrears for action taken on or after 25 December 2020. As it stands, those higher thresholds come to an end on 1 January 2021, but may be extended further.
If CRAR is exercisable, so long as the tenant brings the arrears below the minimum threshold before the landlord takes control of their goods, the landlord cannot take further action. Tenants will hope that the new changes give them time to get back on their feet before the end of the year, but there is still a significant a risk of CRAR coming back into play while tenants' businesses are still recovering.
Enforcing CRAR at residential premises and on roads has also been temporarily restricted. Initiating CRAR usually waives the landlord's right to forfeit. Until 31 December 2020, that is unlikely to apply (but landlords may still take a cautious approach).
What if CRAR had already been initiated?
The most recent changes, coming into force on 29 September 2020, affect all CRAR action – not just new CRAR action initiated after on or after 29 September 2020.
So where does that leave landlords and tenants?
Landlords can, for now, still bring a debt claim for any arrears, but that is likely to be a much slower process than some of the other options that were previously available to them. It may also cost them a lot more and therefore risk simply adding to their losses. It is however important to keep in mind that tenants' obligation to pay rent has not been suspended. Whilst landlords' options are being limited now, much of the changes being introduced are temporary and therefore some landlords, if they can afford to, will decide to bide their time and then pursue arrears when the restrictions have been lifted or there is simply more clarity as to the best approach to take with regards to recovering arrears.
Tenants have been given what many of them will consider welcome breathing space, but they will need to be careful not to store up even bigger problems for later in the year, when cash flow pressures could be even more acute than they are now.
Echoing the Government's guidance to landlords and tenants throughout this public health crisis, both should aim for a constructive dialogue and try to arrive at a solution that both can live with. It is clear that the Government is loath to allow what will hopefully be a temporary crisis to destroy landlord and tenant relationships, which are a key pillar of economic life. The high street, already knocked to the canvas by changing consumer spending patterns and high business rates, could be out for the count if landlords and tenants are not able to find a path through the current crisis.
This briefing was first published on 29 April 2020 and updated on 6 July 2020 and 18 September 2020.