COVID-19 Secure - What are the immediate common interest implications for landlords and tenants when re-opening restaurants, pubs and bars?

There will be many common interest areas for landlords and tenants, particularly if a restaurant or bar forms part of a wider estate. There are some immediate issues for both landlords and tenants to consider along with the impact of proposed national/local measures that are intended to help hospitality businesses.

Should I worry about what my tenant/landlord is doing or communicate with them?

Yes. The COVID-19 Secure measures form part of the health and safety framework which impacts all employers, their employees and visitors to their premises.

Health and safety legislation places responsibilities on both landlords and tenants to eliminate or control risks in respect of visitors to their premises and not just whilst they are within their four walls. Some of these should be seen as shared or common interest responsibilities and the impact of COVID-19 Secure will require both parties to work together.

There are also going to be new measures introduced to help support businesses such as a quicker and simpler approach to pavement licences and changes to the Licensing Act 2003.

How do the social distancing guidelines impact access to or within my premises?

Landlords generally retain responsibility for the common parts of a building, shopping centre or estate. Careful consideration needs to be given by the landlord or building management on how people gain safe access and egress whilst maintaining social distancing measures. Pinch points need careful management, including for example:

• Reception/Lobby areas
• Lifts/stairs
• Car parking
• Communal facilities such as toilets, outside seating and cycle parking
• Service yards

Consulting with interested parties and sharing these plans with them is vitally important in safeguarding all occupiers and visitors to a property. All parties need to work together to understand the impact of the one-metre-plus social distancing guideline to their specific circumstances and how it impacts their respective risk assessments.

Tenants should consider the impact of such access constraints for their employees and customers and how these might affect working arrangements. Tenants should share their plans for reoccupation with the landlord along with a copy of their risk assessment. All parties may need to revise their risk assessments as more businesses reopen.

What about privately owned outside space?

Outside space forming part of a tenant’s lease will need to form part of a tenant’s risk assessment. Access to it and management of it will be more important than was the case before the pandemic.

Licensed seating areas will normally require both parties to carry out risk assessments.

Communal outside space will continue to be managed by landlords and form part of their risk assessment. Health and safety rules impose a duty on businesses to co-operate and co-ordinate their activities in relation to shared areas. Therefore tenants cannot ignore the impact of their business on these areas.

Providing new or additional outside space to tenants will need careful consideration. When making changes to common areas landlords will need to be aware of the impact on the rights granted to other tenants. Leases will not always allow landlords to remove or re-designate common parts or allow tenants to appropriate common parts for their own use.

Do landlords and tenants need to liaise in relation to pavements and public realm?

Whilst the Government is clearly keen to encourage alfresco dining tenants should check whether their leases prohibit them selling food or drink for consumption off their premises. This applies to any changes to the licensing laws as well. Tenants may need a waiver from their landlords so that they are not in breach of their leases.

Landlords of mixed use estates also need to be aware of what pavement licences their tenants are obtaining as these may impact their own risk assessments.

Who is responsible for cleaning and securing outside space?

Cleaning, security and waste management requirements will be increased as a result of COVID-19. Safety risks for customers in these areas needs to be taken into account given recent events.

Responsibility for clearing food waste from seating areas will need to be established where there is not a clear delineation of control of outside space. Tenants need to be aware of what is happening to food and drink purchased on their premises but consumed within the immediate vicinity of their premises.  

Security measures may be needed on land not forming part of a seating area. Therefore landlords and tenants will have to communicate their proposals in relation to the use of outside space in order that landlords or third parties, such as local authorities, ensure that appropriate safety measures are installed.

The increased costs of cleaning, security and waste management are likely to be borne by tenants, either directly or via service charges. Therefore they have an interest in how this is done and the costs involved which will be governed by their leases.

Who manages customer numbers?

Limiting customer numbers, both inside premises and on tenant controlled outside spaces, will be required and at the first level this will fall onto the tenant. Inevitably this will result in queues outside of premises and all parties need to be aware of the implications of this.

If communal outside space is provided then landlords will normally be responsible for managing this and so controlling numbers becomes a multi-party issue. All users will have to work together to manage such space but ultimately the party in control of that space has to ensure it is meeting the health and safety standards.

Who is responsible for controlling queues outside of a property?

For shopping centres the government’s guidance indicates regulating total numbers and queues should be managed by landlords. For leisure parks this is less clear but as landlords have a legal responsibility for common areas they should still be pro-active in managing these areas. However, this does not mean that tenants do not have to think about outside queues given the duty on businesses to co-operate and co-ordinate their activities in relation to shared areas.

Both sides will have to accept that there may be a need to agree to (temporarily) interfere with or extend rights granted to tenants in order to meet the practical and legal requirements. However, both parties need to comply with their health and safety obligations and find common ground, albeit by agreement in many cases.

All involved must to be aware of the legal requirement to make reasonable adjustments for those with disabilities to ensure they have safe access.

What practical issues are there when preparing a building for reoccupation?

If a building or space has been unoccupied landlords and tenants should ensure that an appropriate level of planned maintenance has been undertaken. Thought should be given to any additional actions that are required prior to occupiers returning to work such as:

• Air handling plant – filters, flushing etc.;
• Checking water systems;
• Deep clean of common parts/storage spaces;
• Increased levels of cleaning/sanitising/janitorial service;
• New signage to help visitors implement new policies.

Does a tenant need approval for its COVID-19 related alterations and signage?

Being COVID-19 Secure will in most cases require some alterations to premises, particularly as a result of the one-metre-plus social distancing guidelines. Whilst most leases require tenants to comply with statutory requirements a tenant’s lease will still govern what approval is needed from its landlord and any superior landlord.

Some of those alterations will require landlord’s approval and commonly, where those alterations are internal and non-structural, that consent should not be unreasonably withheld or delayed. However, external alterations are likely to be more strictly controlled. Delay will be a key factor here and to avoid disputes both parties should ensure there are clear and responsive lines of communication.

Further related articles can be found in the further reading section of the Real estate page.