Just over two years since it started, the moratorium on landlord remedies to effect CRAR (commercial rent arrears recovery) has ended in England and Wales with effect from 25th March 2022.
The moratorium on forfeiture of a commercial lease for non-payment of rent also ended in England on 25th March 2022.
However, in Wales, the moratorium on forfeiture has been extended for a further six months and is now due to end on 24th September 2022.
This will undoubtedly come as a relief to many landlords who have tenants in arrears or need to retake possession of their property.
However, the Commercial Rent (Coronavirus) Act will have an impact on both CRAR and forfeiture, should the rent arrears come under the criteria for protected rent arrears, due to requirements on the tenant to fully or partially close under Coronavirus regulations – we cover this in more detail later in this article.
CRAR – an overview
If the rent is not paid by the due date, the landlord may recover the arrears using CRAR which was introduced in April 2014 under the Tribunals Courts and Enforcement Act 2007, Part 3.
CRAR does not require a court order. It may only be used for the recovery of rent (and VAT) in purely commercial premises. It cannot be used to recover any other charges due, such as service charges or insurance.
There must be a written rental agreement or lease in place to use CRAR, and the lease may not have been terminated.
Forfeiture of lease – an overview
When a landlord wishes to regain possession of commercial premises prior to the expiry of the lease, he can forfeit – or terminate – the lease.
The breach of the terms by the tenant must be due to non-payment of rent (other breaches require that the landlord give the tenant time to remedy the breach).
There must also be a clause within the terms of the lease which permits forfeiture.
Forfeiture entails the peaceful re-entry to the unoccupied property by a certificated enforcement agent, normally assisted by a locksmith.
Once they have secured access to the premises, the locks will be changed and the tenants’, and any sub-tenants’, rights to the property will end.
Commercial Rent (Coronavirus) Act
Whilst the process of CRAR and forfeiture of lease remain unchanged, there is new legislation, the Commercial Rent (Coronavirus) Act, which came into force on 24th March 2022, which will continue to impose restrictions on some enforcement action. You can read the Government press release here.
This is with regards to “protected rent arrears” and the legislation covers CRAR, forfeiture and winding up petitions.
Below is a summary of the key points and you can read more in this article on Commercial Rent (Coronavirus) Act.
Protected rent arrears
These relate to a business tenancy, as defined by Part II of the Landlord and Tenant Act 1954, where the business and/or premises were required to fully or partially close under Coronavirus regulations. It is immaterial if some limited activities were permitted despite the obligation to close.
To be protected, the arrears must relate to the “relevant period” which is beginning at or after 2pm on 21st March 2020 and ending at or before 11:55pm on 18th July 2021 (in England) or 6am on 7th August 2021 (in Wales).
Where the arrears fall under the criteria for protected rent arrears, the only option available to the landlord and tenant is to undertake arbitration, using a Government-approved arbitration body.
The arbitrator’s guiding principles will be preserving the viability of the tenant’s business and the landlord’s solvency.
During the period which begins the day the Act was passed and ends either when arbitration has concluded or when the six months arbitration application period has passed, the landlord is prohibited from using these remedies:
- Making a debt claim in civil proceedings
- Using the commercial rent arrears recovery power (CRAR) and the protected debt is to be disregarded when calculating the net unpaid rent for CRAR
- Give notice of enforcement in relation to the protected debt
- Enforcing a right of re-entry or forfeiture
- Using a tenant’s deposit
Arbitration is, however, not an option should the tenant be subject to:
- A company voluntary arrangement which relates to any protected rent debt that has been approved under section 4 of the Insolvency Act 1986
- An individual voluntary arrangement which relates to any protected rent debt that has been approved under section 258 of that Act
- A compromise or arrangement which relates to any protected rent debt that has been sanctioned under section 899 or 901F of the Companies Act 2006
If you have any questions or would like further information on what action you may be able to take, please get in touch by emailing us or calling us on 08450 999666.
David is an authorised High Court Enforcement Officer and our Director of Corporate Governance